펀드 불완전판매에 대한 사기적 부정거래 혐의 적용의 적정성 검토 - 라임자산운용 사모펀드 환매 중단 관련 형사사건을 중심으로 -

This article examines whether it is appropriate to apply the fraudulent unfair trading provisions under the Capital Markets Act to cases of mis-selling of financial investment products, focusing on criminal cases arising from the suspension of redemptions of private funds managed by Lime Asset Management. Following the DLF incident in 2019 and the Lime and Optimus fund scandals, there has been a growing tendency to impose criminal liability for mis-selling practices—such as violations of the duty to explain—by invoking fraudulent unfair trading charges. However, considerable controversy remains as to whether such legal evaluations are consistent with the structure of the Capital Markets Act and the fundamental principles of criminal law. Against this background, this article first reviews the legislative history, purpose, and interpretive issues surrounding the fraudulent unfair trading provisions of the Capital Markets Act, and confirms that these provisions constitute a comprehensive market fraud regulation primarily aimed at ensuring the fairness and integrity of the capital market rather than protecting individual investors. On this basis, the article analyzes the portions of the indictments that addressed mis-selling conduct in criminal cases related to the Lime Asset Management funds. Despite the identical or highly similar factual structures of these cases, the analysis reveals significant inconsistencies in the scope of defendants subject to punishment, the penal provisions applied, the characterization of the alleged conduct, and the specification of the documents alleged to have been used. While such inconsistencies may be attributable in part to case-specific procedural developments, they largely stem from attempts to forcibly subsume mis-selling conduct—whose nature differs from the conduct contemplated by the fraudulent unfair trading provisions—within the scope of those provisions. Furthermore, in examining whether the application of Article 178 of the Capital Markets Act to mis-selling conduct is substantively justified, this article emphasizes the need for particular caution in specifying the ʻdocuments, etc.ʼʼ at issue under Article 178(1)(2). In particular, careful consideration should be given to whether such documents are capable of influencing the market price formation of collective investment securities, and whether their use extends beyond individual investment solicitations to affect the market as a whole. The criminal cases reviewed in this article demonstrate interpretive approaches that are difficult to reconcile with the purpose of the fraudulent unfair trading regime, including treating materials presented only to a limited number of investors as qualifying ʻdocuments, etc.ʼʼ and broadly characterizing conduct as ʻuseʼʼ without clearly distinguishing between the creation of documents and their dissemination or promotional use. Moreover, even where the statutory elements of fraudulent unfair trading appear to be satisfied on a textual level, questions remain as to whether subsuming mis-selling cases under a market fraud framework accords with legislative intent and the liability structure of the Capital Markets Act, and whether such criminal convictions meaningfully contribute to the effective redress of investor harm. Accordingly, this article argues that the necessity and limits of applying fraudulent unfair trading charges to cases of mis-selling of private funds should be examined with greater caution.