일본의 금융상품거래법상 과징금제도의 최근 논의와 그 시사점 = Current discussions on and implications of fine surcharge system under financial products transaction law in Japan

다국어 초록 (Multilingual Abstract)

Punishment system under the financial products transaction law in Japan (hereinafter, the 'Financial Product Transaction Act") has double structure of fine surcharge system and criminal punishment. In order words, current fine surcharge system under financial products transaction law in Japan, as an administrative measure imposing financial burden, has been introduced in order to make up for the weak points inherent in criminal punishment so that it can restrain offenses in financial and capital market and secure the effectiveness of regulations.
In light of legal nature of such penalty, it is necessary to ensure that the amount and role of fine surcharge are appropriate to be well matching with criminal punishment for more effective and efficient operation of the fine surcharge system. Accordingly, at the time of introduction, the standard to calculate the amount of fine was the minimum amount necessary to restrain offenses which is equivalent to the amount of economic benefit gained by the offender and this was intended to differently treat fine surcharge system from criminal punishment.
It has been considered that the problem of double punishment of imposing both fine and criminal penalty under the antitrust law and the Financial Product Transaction Act is resolved. However, during current discussion on raising amount of fine to large amount, the principle of double jeopardy prescribed in the last part of Article 39 of the Constitution of Japan and principle of nulla poena sine lege set forth in Article 31 of the Constitution have been controversial again. The reason why various discussions on fine surcharge system have been made in Japan is because it is expected that, in the near future, the effectiveness of current fine surcharge system will be worn out.
Meanwhile, in Korea, we introduced and operate the fine surcharge system against the offenses including violation of obligation of public notice of the Capital Market Act, while the fine surcharge is not imposed for unfair trade, which makes the fine surcharge system in Korea has not play its role as a regulatory means. Accordingly, expansion and introduction of fine surcharge system are under discussion in order to effectively restrain and prevent unfair trades such as insider trading and price manipulation. In 2011, the Financial Service Commission made a bill (proposal) under which a fine surcharge system is fully applicable to unfair transactions under the Capital Market Act but concrete legislative proceedings for such bill have not carried out so far because there was the conflict of opinions.
In this paper, I examine the process of introduction and contents of current expansion and reinforcement of fine surcharge system under the Financial Product Transaction Act in Japan, whose legal environment is similar to that in Korea. After then, by introducing current discussions in Japan in terms of legal nature and limit of fine surcharge, an essential issue, and the relationship between fine surcharge and criminal punishment, I suggest some ideas for discussions on extensive introduction of fine surcharge system into the Capital Market Act of Korea.

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