주제별 논단 : 기타 ; 현선연계 시세조종행위의 규제체계에 관한 소고 = Regulations on the Interrelated Manipulation between the Commodity and Derivatives Markets

다국어 초록 (Multilingual Abstract)

As to prohibited activities on market manipulation, Article 176 paragraph 4 of the Financial Investment Services and Capital Markets Act in Korea, which has been effective since February of 2009th, provides that "no one shall conduct any activity falling under the following subparagraphs with respect to the transactions of listed securities or exchange-traded derivatives: 1. changing or fixing the price of the underlying asset of exchange-traded derivatives for the purposes of gaining unjust profits or having a third person gain unjust profits when purchasing or selling the exchange-traded derivatives; 2. changing or fixing the price of the exchange-traded derivatives for the purpose of gaining unjust profits or having a third person gain unjust profits when purchasing or selling the underlying assets of exchange-traded derivatives; 3. changing or fixing the price of securities prescribed by the Presidential Decree as linked to the securities concerned for the purpose of gaining unjust profits or having a third person gain unjust profits when purchasing or selling the securities." A question arises whether Article 176 paragraph is enough to regulate interrelated unfair transactions between the commodity and derivatives markets completely. This paper does answer negatively because current regulators such as the Financial Service Commission (FSC) or the Korea Exchanges (KRX) do not have a supervisory jurisdiction over commodities or underlying assets at all. Thus, those regulators may not ask suspicious traders or relevant investment bankers to submit necessary data and materials for effectively supervising unfair transactions regarding underlying assets. This paper is trying to re-allocate supervisory jurisdictions reasonably among relevant regulators such as derivatives regulators and commodities regulators, thereby having the FSC or the KRX gain any materials easily and promptly from the commodity market itself. In addition, it suggests the reform of the current regulatory regime. Tentatively, the MOU regarding the trans- mission of necessary data may be arranged between the derivative regulator and commodity regulator. However, this alternative cannot be final and permanent. Other legal and regulatory systems of financially advanced countries are deeply analyzed for the successful study.