단기매매차익 반환의 적용 범위에 관한 소고 - 대법원 2023. 8. 31. 선고 2022다253724 판결을 중심으로 -

This paper examines the scope of the short-swing profits rule under the Financial Investment Services and Capital Markets Act, focusing on whether an insider is liable to return short-swing profits even if they held the same securities before the six-month period. To address this question, the paper analyzes the Supreme Court Decision of August 31, 2023 (2022Da253724), reviewing the purpose of the short-swing profit rule, the requirements for its application, and the exceptions to the rule. The study reaches the following conclusions: First, the short-swing profits rule is designed to prevent insiders from exploiting non-public information and to ensure fairness and transparency in the capital market. The rule applies if there is both a purchase and a sale within six months, regardless of prior ownership. Second, exceptions to the short-swing profit rule fall into two categories: statutory exceptions and interpretive exceptions. Interpretive exceptions are recognized only if both the voluntariness and accessibility requirements are satisfied. Third, the acquisition of shares through voluntary cancellation of shares, as illustrated in the Supreme Court Decision, does not qualify under any statutory or interpretive exceptions. Therefore, if an insider of a listed company purchases and sells securities issued by that company within six months, they are liable to return the short-swing profits to the company, even if they previously held the same securities before the six-month period. This paper supports the Supreme Court Decisionʼs conclusion and reasoning, as it established a clear standard for the application of the short-swing profit return system, thereby contributing to the sound development of the capital market and the protection of investors.