공매도 관련 규제에 대한 주요 위반 사례 연구 - 주식차입계약 확정 여부를 중심으로 -

Recent regulatory violations of short selling by global investment banks have brought to the forefront legal issues surrounding the timing and requirements for the confirmation of stock lending agreements. In particular, various contractual structures used by global IBs—such as exclusive lending agreements, affiliate-based borrowing, and pay-to-hold arrangements—have led to discussions on what constitutes the substantive requirements for a valid stock lending under the Capital Markets Act. Accordingly, this paper systematically organizes the interpretative framework for the confirmation requirements of lending agreements, based on Koreaʼs short selling regulations and the Financial Supervisory Serviceʼs guidelines. Furthermore, it identifies the normative structure related to the requirements for contract confirmation by linking it to the principles of loan-for-consumption contracts under Korean civil law, and analyzes the interpretative flexibility and policy appropriateness of Koreaʼs regulatory system through comparative study with those of the U.S., EU, Hong Kong, and Japan. Disputed issues regarding the confirmation timing of stock lending agreements primarily arose in cases involving exclusive lending arrangements and short selling orders using borrowings made by affiliate entities. The exclusive lending agreements were not recognized as ʻʻconfirmed lending contractsʼʼ due to the fact that the stocks and quantities borrowed, lending dates, etc., were substantively determined after the fact, and because of the lack of enforcement mechanisms and explicit records of the stock borrowing. In affiliate-based borrowing cases, the regulatory emphasis was on the need to prove the contractual relationship and confirmation between distinct legal entities. Similarly, in pay-to-hold arrangements, even when fees were paid, the absence of prior confirmation of key elements such as borrowed stock and quantity led to the conclusion that such structures could not be recognized as valid borrowings. The core purpose of short selling regulation lies not only in preventing settlement failures but also in maintaining fair market order through the principle of pre-borrowing. Therefore, recognizing contract confirmation based merely on form or internal practices risks weakening the effectiveness of regulation and undermining legal stability. The regulatory approach—prioritizing substance over form, and evaluating the specific confirmation and record-keeping of pre-borrowing as key criteria—can be viewed as a legitimate direction aligned with the legislative purpose and effectiveness of short selling regulations. This case analysis offers important legal and institutional implications for future interpretation and enforcement of short selling rules.