공매도 규제법제에 관한 연구 (A Study on the Short Selling Regulation)

서지정보

· 발행기관 : 성균관대학교 법학연구원
· 수록지 정보 : 성균관법학 / 22권 / 3호 / 871 ~ 916페이지
· 저자명 : 서완석

초록

Short selling improves market liquidity by increasing the number of sellers in the market at any given time and short selling also improves pricing efficiency. While the market benefits associated with short selling are significant, the practice also has manipulative potential. This potential for abuse has led to the regulation of short sales throughout the history of organized markets.
Concern over abusive short selling and its role as a possible catalyst behind the market crash of 1929 played an important part in the formation of the original U.S. securities regulations. The regulatory structure governing short sales that emerged from the stock market crash of 1929 remained mostly unchanged for over sixty years. However,additional reform became necessary as trading technology and strategies progressed. The tumultuous events leading up to the financial crisis in the fall of 2008 resulted in the rapid enactment of global securities rules and regulations that were designed to limit, curb, or outright ban short selling activity. The resulting regulatory measures exposed a general lack of consistency among national regulators concerning the types of restrictions imposed on short selling as well as short position disclosure requirements.
IOSCO'S final Report on Regulation of Short Selling identified the primary risks attributed to short selling and proposed four regulatory principles designed to limit those risks, while retaining certain market benefits associated with short selling activity. However, while IOSCO's Short Selling Report aimed at providing a consistent global approach to short selling regulation in the areas of compliance, enforcement, and disclosure obligations, the Short Selling Report did not offer a specific regulatory mechanism to achieve these goals. As outlined above, short selling is controversial, especially during market crises, because short sellers benefit from price declines.
This article suggests some effective measures to solve the problems which Korean short selling regulation has. First, short selling regulation,currently regulated by self regulatory organization, must be transferred in laws and ordinance. Second, it is necessary that there must be regulation consistency to close loopholes. Third, according to the current law, a person who has violated duties punished with a fine, but he or she deserves to be punished by criminal and civil penalties. Fourth, flexible approach must be applied toward pricing regulation. Fifth, similarity test for the short selling should be applied.

영어초록

Short selling improves market liquidity by increasing the number of sellers in the market at any given time and short selling also improves pricing efficiency. While the market benefits associated with short selling are significant, the practice also has manipulative potential. This potential for abuse has led to the regulation of short sales throughout the history of organized markets.
Concern over abusive short selling and its role as a possible catalyst behind the market crash of 1929 played an important part in the formation of the original U.S. securities regulations. The regulatory structure governing short sales that emerged from the stock market crash of 1929 remained mostly unchanged for over sixty years. However,additional reform became necessary as trading technology and strategies progressed. The tumultuous events leading up to the financial crisis in the fall of 2008 resulted in the rapid enactment of global securities rules and regulations that were designed to limit, curb, or outright ban short selling activity. The resulting regulatory measures exposed a general lack of consistency among national regulators concerning the types of restrictions imposed on short selling as well as short position disclosure requirements.
IOSCO'S final Report on Regulation of Short Selling identified the primary risks attributed to short selling and proposed four regulatory principles designed to limit those risks, while retaining certain market benefits associated with short selling activity. However, while IOSCO's Short Selling Report aimed at providing a consistent global approach to short selling regulation in the areas of compliance, enforcement, and disclosure obligations, the Short Selling Report did not offer a specific regulatory mechanism to achieve these goals. As outlined above, short selling is controversial, especially during market crises, because short sellers benefit from price declines.
This article suggests some effective measures to solve the problems which Korean short selling regulation has. First, short selling regulation,currently regulated by self regulatory organization, must be transferred in laws and ordinance. Second, it is necessary that there must be regulation consistency to close loopholes. Third, according to the current law, a person who has violated duties punished with a fine, but he or she deserves to be punished by criminal and civil penalties. Fourth, flexible approach must be applied toward pricing regulation. Fifth, similarity test for the short selling should be applied.

참고자료

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