주주평등의 원칙과 그 예외- 실정법과 최근 판례를 중심으로 -

This article proposes improvements to the insider trading regulation under and introducing disclosure regulation in the ACT ON THE PROTECTION OF VIRTUAL ASSET USERS(Virtual Asset Act) of South Korea to protect the metaverse ecosystem and users of the virtual asset that issued, traded, used within it from virtual asset-related fraud, such as virtual asset insider trading, virtual asset market manipulation and unfair trading. First, Chapter I provides background on the core topics of this article, and Chapter II, limited to the regulation for insider trading, market manipulation, and other fraudulent practices of the FINANCIAL INVESTMENT SERVICES AND CAPITAL MARKETS ACT (Capital Markets Act), provides an overview of fraudulent practices that can be used with virtual assets in the metaverse. Chapter 3, the authors examine the virtual asset fraud regulatory systems of the United States, Europe, Japan, and South Korea, and in Chapter 4, the authors drow regulatory vacuum in South Korea’s Virtual Asset Act based on a comparative analysis of each countries regulatory system, and then present policy alternatives. To summarize the core argument, South Korea has established a separate statute, the Virtual Asset Act, that applies only to the issuance and transaction of virtual assets, by modeling the European approach to virtual asset regulation, but the structure and contents of the statute are based on the Capital Market Act modelled the securities regulation of the United States. The problem is that the European Union’s Market in Crypto-Assets Regulation (EU MiCA) has adopted the framework of the Market Abuse Regulation (EU MAR), which established insider trading regulations and disclosure regulations based on the “equal access” theory, and the two regulations are linked to a single concept of inside information, so the inside informations subject to insider trading regulations and disclosure regulations are the same. Accordingly, in the European Union, basically “anyone” who has access to inside information, regardless of whether that person is an insider or outsider, cannot use that information in virtual assets transaction without disclosing it. On the other hand, the securities fraud regulations in the United States determine the breach of the use of material nonpublic information based on the fiduciary relationship between the person who traded securities based on the information and the issuer, its shareholders, or the source of the information. Although the Korean Capital Markets Act does not require a fiduciary relationship, the legal theory underlying the Act is based on the theory of the United States, Fiduciary Duty Theory and Misappropriation Theory, and in substance, the Act has a structure that distinguishes between insiders and outsiders. In addition, the Korean Virtual Asset Act still does not include a disclosure system. The legal issue that must be managed when introducing a disclosure system into the Virtual Asset Act is how to resolve the discrepancy between the scope of material nonpublic information subject to insider trading regulations and the disclosure system of the Capital Markets Act. In short, it is necessary to resolve the systematic inconsistency within the Virtual Asset Act that has arisen from referring the structure and contents of Capital Markets Act, which has modelled the United States’ theories of securities regulation while also borrowing the European approach in enacting the Virtual Asset Act. Against this backdrop, this article proposes a plan to set the scope of material nonpublic information (inside information) based on the theory and approach of European Union, and link insider trading regulations with the disclosure system.