해석에 의한 단기매매차익 반환의 적용예외에 관한 고찰 - 대법원 2024. 5. 9. 선고 2020다202616 판결을 중심으로 -

This article examined the facts and main points of the Supreme Court Decision in Case 2020da202616 on May 9, 2024 (hereinafter referred to as “the decision”), examined related discussions in the United States and Japan, and then provided a commentary on the decision’s judgment regarding the exception to the application of the disgorgement of short-swing profits by interpretation. First, considering ① the purpose of the regulation on the disgorgement of short-swing profits, ② the interpretation of the text of the law, ③ overseas cases, ④ the components of the regulation on the disgorgement of short-swing profits, and ⑤ Deeming non-existence of transactions falling under the exceptions to the application, the decision that the regulation on the disgorgement of short-swing profits does not apply if either the preceding transaction or the subsequent transaction falls under the exceptions to application is reasonable. Second, considering ① the necessity of the requirements of ‘involuntariness of transactions’ and ‘no access to inside information’, ② the premise of the regulation on the disgorgement of short-swing profits, and ③ the necessity of making the scope of recognition of the exceptions to the application of the disgorgement of short-swing profits by interpretation be both minimal and well-defined, it is reasonable to assume that both the requirements of ‘involuntariness of transactions’ and ‘no access to inside information’ must be met in order to fall under the exceptions to the application of the disgorgement of short-swing profits by interpretation. In a situation where opinions are divided on the Supreme Court’s position on this matter, the relationship between the two requirements of ‘involuntariness of transactions’ and ‘no access to inside information’ remains unclear as the decision did not even mention ‘no access to inside information’. Third, the decision acknowledged the ‘involuntariness of transactions’ by citing the original judgment’s ruling on the ‘involuntariness of transactions’. However, even though it was a collective legal resolution, it is questionable whether the debt-for-equity swap can be considered involuntary for the defendant, as the defendant was able to influence the resolution of the debt-for-equity swap and determine the timing of the debt-for-equity swap. In addition, the fact that ‘the debt-for-equity swap in this case was inevitable in order to maintain the listing necessary for the normalization of the plaintiff’s management’ can be said to be an economic and subjective circumstance, so it is questionable whether it is appropriate to judge the ‘involuntariness of transactions’ by taking these circumstances into consideration. Fourth, the decision did not separately rule on the ‘no access to inside information’, and the original trial made a ruling that seemed to acknowledge the ‘no access to inside information’. Even if it is possible for creditors to access the inside information of a company showing signs of insolvency, it is questionable whether the possibility of access to inside information can be denied based on the reason mentioned by the original trial that “it is difficult to see that the acquisition of stocks is induced by inside information under consideration of economic gains and losses, or that the acquisition is determined by inside information”. In addition, it is questionable whether the above ruling by the original trial is in harmony with the existing case law that ruled that “the possibility of access to inside information cannot be completely ruled out based on the appearance alone”. Through the accumulation of future judgments and follow-up research, it is expected that the relationship between the two requirements of ‘involuntariness of transactions’ and ‘no access to inside information’, as well as the factors to be considered and the criteria for judgment when judging the requirements of ‘involuntariness of transactions’ and ‘no access to inside information’, will be more clearly identified.