현실거래에 의한 시세조종과 매매유인 목적

2012. 11. 29. 선고 2012도1745 판결 사안( 도이치증권 v. 대한전선 사건)을 중심으로

These acts of unfair trades are increasing in our capital market and especially the occurrences of new type of unfair trades cast attentions on same fields for example manipulations disguising hedge in Knock-out option trade etc. Elements of some crimes in which unfair trades result are composed of requirements objective and subjective, in that case the latter is more important than the former. We could prove it the satisfaction of objective elements by comparing the share price produced by manipulations with original price. But it is very difficulty that we prove the satisfaction of subjective elements because it is inward intentions. When intending on manipulations, the intention is represented by inducing transactions. Inducing transactions is usually so unrevealed that unless a criminal confesses his intentions, we should prove it by assembling indirect evidences and total circumstances. Crimes in manipulations fields are developing without halts. In order to cope with its revolutions, we should make flexible applications of inducing meaning and establish concrete legal basis focused on specific features according to trading shares in each stage. Further more it is necessary to abolish one of several subjective requirement that is inducing through a future revision of law.