최근 미국 내부자거래 법리의 몇 가지 변화

The U.S. insider trading law has developed through interpretations by the Securities and Exchange Commission (SEC) and the federal courts, and several doctrinal changes can be summarized from June 2022 to the present as follows. ① The statutory bases for insider trading enforcement under U.S. law are found in Title 15’s securities fraud provision (15 U.S.C. §78j(b)) and Title 18’s wire and securities fraud provisions (18 U.S.C. §1343, §1348). Following United States v. Blaszczak, a doctrinal inconsistency has emerged: under Title 15, a “personal benefit” requirement is necessary, while a “property” element is unnecessary, whereas under Title 18, the converse interpretation applies, giving rise to a potential conflict between the two regimes. ② In SEC v. Panuwat, the “shadow trading” theory expanded the scope of insider trading liability by holding that material nonpublic information from economically linked entities qualifies as material information, and that violations of corporate insider trading policies may serve as grounds for breach of fiduciary duty. ③ Applying insider trading law to virtual assets classified as investment contracts under the Howey Test raises debates over their securities status and risks regulatory gaps; however, by invoking Title 18 wire fraud provisions, misappropriation of material information can be treated as property-based fraud, thereby addressing such gaps. ④ The December 14, 2022, amendments to Rule 10b5-1 strengthened the affirmative-defense framework by imposing cooling-off periods, limits on overlapping and single-trade plans, and an ongoing good-faith requirement, which were intended to enhance market fairness but have raised concerns about regulatory rigidity. With growing attention to fairness in capital markets, it is necessary to reference recent developments in the U.S. insider trading law, which sets the standard for global capital markets, when considering institutional improvements.