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자본시장 불공정거래 및 기업공시 판례 분석 : 깨끗하고 공정한 자본시장을 위한 지침서

자본시장 불공정거래 및 기업공시 판례 분석 : 깨끗하고 공정한 자본시장을 위한 지침서 (Loan 16 times)

Material type
단행본
Corporate Author
금융감독원
Title Statement
자본시장 불공정거래 및 기업공시 판례 분석 : 깨끗하고 공정한 자본시장을 위한 지침서 / [금융감독원 편]
Publication, Distribution, etc
[서울] :   금융감독원,   2015  
Physical Medium
2책 ; 26 cm
General Note
색인수록  
Content Notes
[v.1]. 불공정거래편 (414 p.) -- [v.2]. 기업공시편 (276 p.)
000 00000cam c2200205 c 4500
001 000045862749
005 20160309113004
007 ta
008 160222s2015 ulk 001c kor
035 ▼a (KERIS)BIB000014000232
040 ▼a 247017 ▼c 211009 ▼d 211009
082 0 4 ▼a 346.519092 ▼2 23
085 ▼a 346.53092 ▼2 DDCK
090 ▼a 346.53092 ▼b 2015z2
110 ▼a 금융감독원
245 1 0 ▼a 자본시장 불공정거래 및 기업공시 판례 분석 : ▼b 깨끗하고 공정한 자본시장을 위한 지침서 / ▼d [금융감독원 편]
260 ▼a [서울] : ▼b 금융감독원, ▼c 2015
300 ▼a 2책 ; ▼c 26 cm
500 ▼a 색인수록
505 0 0 ▼n [v.1]. ▼t 불공정거래편 ▼g (414 p.) -- ▼n [v.2]. ▼t 기업공시편 (276 p.)
910 0 ▼a Financial Supervisory Service, ▼e
945 ▼a KLPA

Holdings Information

No. Location Call Number Accession No. Availability Due Date Make a Reservation Service
No. 1 Location Main Library/Law Library(Books/B1)/ Call Number 346.53092 2015z2 1 Accession No. 111751854 Availability Available Due Date Make a Reservation Service B M
No. 2 Location Main Library/Law Library(Books/B1)/ Call Number 346.53092 2015z2 2 Accession No. 111751855 Availability Available Due Date Make a Reservation Service B M

Contents information

Table of Contents

1권

제1장 미공개정보이용 사례
제1절 미공개 중요정보 ································································································· 3
1. 규제의 취지 ·················································································································· 3
2. 중요정보의 판단 ··········································································································· 4
(1) 중요정보의 개념 ········································································································ 4
(2) 중요정보와 공시의무사항과의 관계 ············································································ 6
(3) 정보의 진실성 ········································································································· 10
(4) 시장정보와 결합된 내부정보 ···················································································· 12
3. 중요정보의 생성시기 ··································································································· 15
(1) 법인 내부에서 생성된 경우 ····················································································· 16
(2) 법인 외부에서 생성된 경우 ····················································································· 21
4. 정보의 미공개성 ········································································································· 24
(1) 신문 등에 보도된 경우 ···························································································· 24
(2) 관련 회사의 부도발생이 공시된 경우 ······································································· 26
(3) 거래당사자 상호간 정보를 잘 알고 있는 경우 ························································· 27
(4) 과거 유사한 유상증자 시도가 있었던 경우 ······························································ 31
(5) 회사의 분기 재무상태만이 공시된 경우 ··································································· 32
5. 악재성 중요정보를 이용한 사례 ·················································································· 33
(1) 재무구조 악화 및 대규모 유상증자 ·········································································· 33
(2) 무보증 전환사채 발행 ······························································································ 34
(3) 계열회사의 수익성 악화 ·························································································· 34
(4) 대규모 적자 ············································································································ 35
(5) 자금사정 악화에 따른 화의개시신청 ········································································ 35
(6) 감자 실시 ················································································································ 36
(7) 경영진의 긴급체포 ··································································································· 38
(8) 회사자금 횡령 ········································································································· 39
(9) 회계법인의 감사의견 거절 ······················································································· 39
(10) 부도 발생 ·············································································································· 40
(11) 부실금융기관 지정 ································································································· 41
(12) 제3자 배정 유상증자 실패 ····················································································· 42
6. 호재성 정보를 이용한 사례 ························································································· 42
(1) 제3자배정 유상증자 ································································································· 42
(2) 무상증자 ················································································································· 43
(3) 타법인 인수 ············································································································ 44
(4) 법정관리 및 M&A ··································································································· 44
(5) 합병 ························································································································ 46
(6) 우회상장 ················································································································· 47
(7) 자사주 취득 ············································································································ 48
(8) 해외전환사채 발행 계획 ·························································································· 48
(9) 기술이전계약 체결 ··································································································· 48
(10) 특허 취득 ·············································································································· 49
(11) 추정 결산실적 호전 ······························································································· 49
(12) 물품 공급업체 선정 및 회사사옥 매각 ··································································· 50
(13) 공개매수 ··············································································································· 51
(14) 해외 유전개발회사 투자 ························································································ 51
제2절 내부자 및 정보수령자의 범위 ······································································· 53
1. 당해법인의 주요주주 ··································································································· 53
(1) 주요주주 판단기준 ··································································································· 53
(2) 주요주주인 법인 ······································································································ 54
(3) 주요주주인 법인의 임원 ·························································································· 55
2. 당해법인과 계약을 체결하고 있는 자 ·········································································· 56
(1) 계약의 의미 및 성격 ······························································································· 57
(2) 계약의 유효성 ········································································································· 59
3. 대리인·사용인 기타 종업원의 범위 ············································································ 60
4. 계약체결자 및 그 대리인이 정보를 이용한 사례 ························································· 62
(1) M&A 및 컨설팅계약 체결자 ····················································································· 62
(2) 신주인수계약 체결자 ······························································································· 63
(3) 자금유치 자문계약 체결자 ······················································································· 63
(4) 투자유치 자문계약 체결자 ······················································································· 64
(5) 손실보전약정 체결자 ······························································································· 65
(6) 비상장사 자금유치 대리인 ······················································································· 65
(7) M&A 업무 용역계약을 체결한 법인의 직원 ······························································ 66
(8) 경영정상화 약정을 체결한 은행의 직원 ··································································· 66
5. 정보수령자 ·················································································································· 67
(1) 정보수령자의 의미 ··································································································· 67
(2) 2차정보수령자와 공범 ····························································································· 69
제3절 직무관련성 ········································································································· 74
1. 당해법인 임·직원의 직무관련성 ················································································· 74
(1) 구내식당에서 전해들은 경우 ···················································································· 74
(2) 사무실에서 우연히 알게 된 경우 ············································································· 74
2. 계약체결자의 직무관련성 ···························································································· 76
(1) 당해 계약과 직접적인 관련성이 없는 경우 ······························································ 76
(2) 외부연구소의 직원이 자체전산망으로 취득한 경우 ··················································· 78
제4절 이용행위 ············································································································· 80
1. 이용행위의 판단 ········································································································· 80
(1) 이용행위의 판단기준 ······························································································· 80
(2) 정보의 구체적인 내용을 알려주지 않은 경우 ··························································· 81
(3) 정보제공행위와 이용행위 사이의 인과관계 ······························································· 82
(4) 미공개중요정보를 이용하여 주식을 매수하고 정보공개 전 매도한 사안 ···················· 83
2. 이용행위로 인정한 사례 ······························································································ 84
(1) 정보를 취득·제공한 경우 ······················································································· 84
(2) 미공개정보를 인식한 상태의 거래 ············································································ 87
3. 이용행위로 인정하지 않은 사례 ·················································································· 90
(1) 정보를 취득하지 않은 경우 ····················································································· 90
(2) 고의 유무가 문제되는 경우 ····················································································· 93
(3) 주식매도에 다른 합리적인 이유가 있는 경우 ··························································· 94
제5절 공 범 ··················································································································· 96
1. 내부자간 공모 ············································································································ 96
2. 내부자의 이용에 타인이 가담 ····················································································· 97
3. 주식교환 당사자간 공모 ······························································································ 98

제2장 시세조종 사례
제1절 위장거래에 의한 시세조종 ············································································ 103
1. 성립요건 ··················································································································· 103
(1) 목적에 대한 판단 ·································································································· 103
(2) 같은 시기 및 같은 가격의 의미 ············································································· 104
(3) 가장매매와 통정매매의 구분 ·················································································· 105
2. 구체적 사례 ·············································································································· 106
(1) 증권사의 반대매매를 이용한 통정매매 ··································································· 106
(2) 신고하지 않은 시간외 대량매매 ············································································· 107
(3) 시장조성·안정조작의 요건을 갖추지 않은 대량매매 ·············································· 109
(4) 목적에 대한 확정적 인식이 없는 경우 ··································································· 109
(5) 다른 목적이 병존하는 경우 ···················································································· 110
(6) 가장매매 성립을 위해 ‘오인목적’ 필요 여부 ··························································· 115
제2절 현실거래에 의한 시세조종 ············································································ 117
1. 성립 요건 ················································································································· 117
(1) 목적에 대한 판단 ·································································································· 117
(2) 시세조종주문의 일반적 유형 ·················································································· 122
2. 구체적 사례 ·············································································································· 126
(1) 동시호가시간대의 고가매수 주문 ············································································ 126
(2) 지정가 매수주문 ···································································································· 126
(3) 단 한 차례의 대량매도 주문 ·················································································· 128
(4) 투자수익보장약정 하에 대량매수 주문 ··································································· 129
(5) 펀드매니저의 종가매수주문 ···················································································· 131
(6) 허수매매 주문 ······································································································· 132
(7) 대주주가 대량 매집한 경우 매매유인목적을 인정한 사례 ······································· 135
(8) 상장예정 주식에 대한 매매 ···················································································· 138
(9) 시세조종 유포 행위 ······························································································· 140
(10) 시세고정행위 ······································································································· 142
(11) 매매양태 등을 이유로 무죄가 선고된 사례 ··························································· 144
(12) 이면계약을 이용한 시세조종 ················································································ 148
(13) 우선주 4주를 이용한 시세조종 ············································································ 150
(14) 상한가 굳히기 ····································································································· 150
(15) 초단기매매 ·········································································································· 155
제3절 시세고정·안정에 의한 시세조종 ·································································· 157
1. ‘시세를 고정시킬 목적’의 의미 및 판단 기준 ····························································· 157
2. 자전거래 ··················································································································· 159
3. 구체적 사례 ·············································································································· 161
(1) 시세고정 행위 ······································································································· 161
(2) 시세안정 행위 ······································································································· 163
제4절 동기별 시세조종 사례 ···················································································· 165
1. 사채발행의 원활화 ···································································································· 165
2. 신주발행가격 하락 ···································································································· 166
3. 무자본 M&A ············································································································· 167
4. 반대매매 방지 ··········································································································· 170
5. 유상증자의 성공 ······································································································· 171
6. 전환사채 가격조정 ···································································································· 173
7. 합병의 성취 ·············································································································· 174
8. 코스닥시장 상장 유지 ······························································································· 175
9. 블록딜의 성사 ··········································································································· 176
10. 주식투자대회 상금취득 ······························································································ 177
제5절 공범 및 고의성 등 ·························································································· 178
1. 시세조종의 공범 ······································································································· 178
(1) 공모관계의 성립 ···································································································· 178
(2) 공모의 증명 정도·방법 ························································································· 179
(3) 공범관계에서 이탈한 경우 ····················································································· 180
(4) 구체적 실행행위를 이행하지 않은 경우 ·································································· 181
(5) 묵시적인 의사의 연락 ···························································································· 182
(6) 시세조종에 동원한 계좌에 대한 구체적 협의가 없는 경우에도 공모공독정법 인정 ····· 184
2. 공동정범 사례 ··········································································································· 185
(1) 시세조종을 지시·가담한 대주주 ············································································ 185
(2) 물량통제를 위해 비밀번호 등을 교부한 자 ····························································· 187
(3) 시세조종 전문가를 소개한 자 ················································································ 189
3. 종범(방조범) 사례 ······································································································ 190
(1) 사채업자 ················································································································ 190
(2) 증권계좌 제공자 ···································································································· 191
(3) 계좌 및 장소 제공자 ····························································································· 192
(4) 증권사 직원 ··········································································································· 193
4. 시세조종의 고의성 판단 ···························································································· 194
(1) 경력 및 직업 ········································································································· 194
(2) 거래규모 이익분배 등을 종합적으로 판단한 사례 ··················································· 196
5. 포괄일죄 ··················································································································· 200
(1) 여러 유형을 반복한 경우 ······················································································· 200
(2) 시차가 있는 경우 ·································································································· 201
(3) 여러 종목 ·············································································································· 202
(4) 공모관계가 상이한 경우에도 포괄일죄 인정한 사례 ················································ 203
(5) 제1차부터 제3차까지 시세조종이 시기별로 구분되는 경우에도 단일하고
계속된 범의에 의한 경우 포괄일죄 인정한 사례 ···················································· 204
6. 공소사실 특정 ··········································································································· 205
(1) 공소사실 특정 정도 ······························································································· 205
(2) 공소사실이 특정되었다고 본 사례 ·········································································· 205

제3장 부정거래 사례
제1절 적용범위 ············································································································ 209
1. 유가증권의 범위 ······································································································· 209
(1) 비상장주식 ············································································································ 209
(2) 제3시장 거래주식 ·································································································· 210
(3) 전환사채 ················································································································ 211
(4) 장외주식 ················································································································ 212
2. 매매 기타 거래의 유형 ····························································································· 213
(1) 합병계약 ················································································································ 213
(2) 신주인수권부사채 발행 ·························································································· 213
(3) 매매거래의 실행성 ································································································· 214
제2절 부정한 수단, 계획, 기교 사용 ····································································· 215
1. 개념 ························································································································· 215
(1) ‘부정한 수단, 계획, 기교’의 의미 ··········································································· 215
(2) 규정취지 ················································································································ 215
(3) 타 규정과의 관계 ·································································································· 216
2. 구체적 사례 ·············································································································· 219
(1) 유상증자에 실질사주가 차명으로 참여 등 ······························································ 219
(2) 수익보장 약정하에 외국인 명의로 증자 참여 ························································· 221
(3) 수익보장 약정 하에 주식 매수 ··············································································· 222
(4) 합병신주의 차명 인수 ···························································································· 223
(5) 기자라는 우월적 지위를 이용하여 기교를 사용 ······················································ 225
(6) 유상증자 대금을 사채자금으로 조달하고, 사채업자에게 원금 및 이자 보장 ············ 226
(7) 옵션거래에서 통정거래로 부당이득을 얻은 사례 ····················································· 227
(8) 사모발행의 범위를 초과하여 공모방법으로 투자권유를 한 사례 ······························ 229
(9) 무자본 M&A를 하면서 외국계 우량 투자회사가 인수하는 것처럼 허위 공시 ·········· 231
제3절 부실표시의 사용행위 ······················································································ 233
1. 성립요건 ··················································································································· 233
(1) ‘중요한 사항’의 의미 ······························································································ 233
(2) 허위 여부의 판단대상 ···························································································· 234
(3) 문서 이용의 의미 ·································································································· 235
(4) 인과관계 불필요 ···································································································· 236
2. 구체적 사례 ·············································································································· 237
(1) 대량보유보고시 보유목적 허위기재 ········································································ 237
(2) 대량보유보고시 취득자금 조성내역 허위기재 ·························································· 240
(3) 대량보유보고시 최대주주 등 허위기재 ··································································· 242
(4) 최대주주 변경 허위공시 ························································································· 243
(5) 대량·소유주식 보고시 차명주식 누락 ··································································· 245
(6) 유가증권신고서상 재무제표 허위 기재 ··································································· 249
(7) 유가증권신고서상 증자대금 사용목적 허위기재 ······················································ 250
(8) 해외 BW발행시 발행규모 허위공시 ········································································ 250
(9) 타법인 출자 허위 공시 ·························································································· 252
(10) 주식공모 광고 및 안내문 허위기재 ······································································ 253
(11) 각종 계약 허위 공시 ··························································································· 254
(12) 사채자금임에도 일반투자자들로부터 공모 청약 받은 것처럼 허위 기재 ················ 255
(13) 저축은행의 후순위 채권 발행시 투자설명서에 BIS비율을 허위 기재 ····················· 256
(14) 사채업자로부터 자금을 빌려 주금납입을 가장하고 즉시 변제 ······························· 257
(15) 연대보증채무 부담사실을 누락한 공시서류를 제출 ··············································· 261
3. 무죄판결 사례 ··········································································································· 262
(1) 대량보유보고서 미제출 ·························································································· 262
(2) 소규모 차명주식 누락 ···························································································· 264
(3) 수익보장약정하에 제3자배정 증자 참여 ································································· 267
(4) 고의가 없는 경우 ·································································································· 268
제4절 풍문의 유포, 위계, 폭행 또는 협박 ··························································· 271
1. 판단기준 ··················································································································· 271
(1) 구 증권거래법상 부당이득 목적 판단 ····································································· 271
(2) 풍문의 개념 ··········································································································· 272
(3) 허위 또는 위계여부 판단방법 ················································································ 275
2. 구체적 사례 ·············································································································· 276
(1) 기자들에게 허위의 보도자료 배포 ·········································································· 276
(2) 애널리스트에게 허위자료 제공 ··············································································· 278
(3) 위계로 감자계획 발표 ···························································································· 279
(4) 주식양수도시 위계로 일부 주식 은닉 ····································································· 282
(5) 해외 투자유치를 허위로 발표 ················································································ 286
(6) 허위공시를 통한 허위사실 유포 ············································································· 289
7) 주식공모안내 광고에 허위사실 기재 ······································································· 291
(8) 적대적 M&A를 가장 ······························································································ 292
(9) 호재성 글을 지속적으로 게시하면서 보유주식 매도 ················································ 295
(10) 금광 개발사업과 관련한 허위 보도자료 배포 ······················································· 296
(11) 증권방송을 통해 매수추천을 하는 방법으로 위계를 사용 ····································· 297
(12) 시세조종과 위계가 결합된 경우 ··········································································· 298
(13) 패소사실을 숨기고 승소할 것이라는 내용의 보도자료를 배포 ······························· 299
3. 무죄판결 사례 ··········································································································· 299
(1) 외국인의 법인명의 주식 매입 ················································································ 299
(2) 인터뷰보다 과장된 기사 보도 ················································································ 302
(3) 인터넷게시판 종목토론방에서 과장된 표현 사용 ····················································· 304

제4장 부당이득 산정
제1절 부당이득의 개념 ···························································································· 310
1. 부당이득의 범위 ······································································································· 310
(1) 부당이득의 해석 ···································································································· 310
(2) 합병시 주식매수청구권 행사규모 축소 ··································································· 310
(3) 합병시 지분희석 방지 등 ······················································································· 311
(4) 매각제한을 받지 않는 합병신주 취득 ····································································· 312
(5) 주식가치 유지 및 경영권 유지 ··············································································· 312
2. 위반행위와 이익간의 인과관계 ·················································································· 313
(1) 인과관계의 개념 ···································································································· 313
(2) 인과관계 판단기준 ································································································· 314
(3) 인과관계를 폭넓게 인정한 사례 ············································································· 315
(4) 인과관계를 좁게 인정한 사례 ················································································ 317
제2절 미공개중요정보 이용의 부당이득 산정 ···················································· 322
1. 부당이득액의 개념 ···································································································· 322
2. 부당이득액의 매도단가 산정방식 ··············································································· 322
(1) 정보공개 후 최초형성 최고가 ················································································ 322
(2) 최종 처분행위시 주가 ···························································································· 324
(3) 타 정보의 공개 전일 종가 ····················································································· 325
(4) 미실현이익 ············································································································ 326
3. 손실회피액의 매도단가 산정방식 ··············································································· 327
(1) 정보공개 후 최초형성 최저가 ················································································ 327
(2) 정보공개 후 주가가 안정화된 시점의 주가 ····························································· 327
4. 정보전달자의 부당이득 ······························································································ 330
제3절 시세조종의 부당이득 산정 ············································································ 331
1. 부당이득의 산정방식 ································································································· 331
(1) 순매매이익 ············································································································ 331
(2) 평가이익 포함 ······································································································· 332
(3) 미실현이익을 포함시키는 것이 죄형법정주의에 위배되는지 여부 ···························· 333
(4) 시세조종기간 특정 ································································································· 333
(5) 시세조종행위 종료일로부터 단기간 내에 주식처분이 이루어진 경우에는
미실현이익이 아닌 실현이익으로 평가 ··································································· 335
(6) 시세조종행위 종료 후 손실은 이익 산정에서 미고려 ·············································· 337
(7) 시세조종행위와 무관한 자기주식에서 발생한 평가이익은 이익 산정에서 미고려 ····· 337
(8) 사건연구방식 ········································································································· 340
2. 매수단가 산정방식 ···································································································· 341
(1) 매수단가 산정의 시기(始期) ···················································································· 341
(2) 시세조종 이전에 취득한 주식 ················································································ 342
(3) 발행신주 ················································································································ 343
(4) 담보로 취득한 주식 ······························································································· 343
(5) 시세조종에 의하지 않고 취득한 주식의 평가액 산정 ·············································· 344
3. 시세조종에 사용되지 않은 혐의자의 다른 계좌에서 발생한 이익 ······························· 345
(1) 시세조종의 계획으로 장외매수한 주식 ··································································· 345
(2) 시세조종과 무관하게 보유한 주식 ·········································································· 346
4. 공범자의 부당이익 ···································································································· 347
(1) 공범 전체가 취득한 이익을 합산 ··········································································· 347
(2) 승계적 공동정범의 경우 ························································································· 349
5. 범행에 가담하지 않은 제3자에게 귀속하는 이익 ······················································· 351
(1) 범행에 가담하지 아니한 제3자에게 귀속되는 이익 불포함 ····································· 351
(2) 피고인과 차명계좌 명의인의 자금이 혼재되어 피고인에게 귀속되는
이익을 특정할 수 없는 경우 ·················································································· 352
(3) 시세조종행위에 이용된 모든 계좌에서 발생한 이익이 모두 피고인에게
귀속된 것으로 추단할 수 있는지 여부(소극) ····························································· 352
(4) 시세조종행위로 인한 이익이 일임매매 고객에게 귀속된 경우 ································· 354
6. 법인 대표자의 위반행위로 인해 이익이 법인에게 귀속된 경우 ·································· 355
7. 기 타 ························································································································ 357
(1) 양벌규정 적용 ······································································································· 357
(2) 법 개정 전후에 걸쳐있는 경우 ··············································································· 358
(3) 현물이 입·출고된 경우 ························································································· 360
(4) 부당이득액이 정확하지 않다는 이유로 추징형을 선택하지 않는 사례 ····················· 361
제4절 부정거래의 부당이득 산정 ············································································ 362
1. 주가상승을 위한 부정거래 ························································································· 362
2. 주가하락을 위한 부정거래 ························································································· 365
3. 구체적인 사례 ··········································································································· 367
(1) 일임계좌에서 발생한 이익 포함여부 ······································································· 367
(2) 법인의 대표자 등이 법인의 업무에 관하여 위반행위를 한 경우 법인이 얻은
이익도 대표자의 이익에 포함 ················································································ 368
(3) 유상증자 대금 전체를 부당이득으로 볼 수 없다는 사례 ········································· 369

제5장 양벌규정의 적용
1. 위반자가 사업자인 경우 대표자에 대한 양벌 적용 ···················································· 374
2. 대표자, 대리인, 사용인 기타 종업원의 범위 ······························································ 375
(1) 판단 기준 ·············································································································· 375
(2) 고용계약 없는 보조자 ···························································································· 375
3. 업무관련성 ················································································································ 376
(1) 판단 기준 ·············································································································· 376
(2) 법인 및 대주주에 대한 업무 관련성 ······································································ 377
4. 법인 등의 귀책사유 ·································································································· 377
5. 범죄유형별 양벌규정 적용 ························································································· 379
(1) 미공개정보이용 관련 ······························································································ 379
(2) 시세조종 관련 ······································································································· 382
(3) 부정거래 관련 ······································································································· 384

제6장 기타 관련 판결
1. 금융감독원 문답서 증거능력 ····················································································· 388
2. 증권회사가 주가연계증권의 중도상환조건 성취를 방해한 사안 ··································· 390
3. 투자자가 입은 손해를 산정하는 방법 ········································································ 392
4. 증권관련 집단소송 허가 ···························································································· 392

금융용어 해설 ············································································································· 396

판례색인 ························································································································· 403


2권

제1장 발행공시
제1절 모집·매출 ·············································································································· 4
1. 주권을 교부받은 자가 50명을 넘은 경우 ······································································ 4
2. 간주모집 ······················································································································· 6
3. 매출시 증권신고서 제출의무 위반 ················································································· 7
4. 청약권유 대상자에서 제외되는 자 ················································································· 8
5. 해외증권 모집·매출 ··································································································· 11
제2절 증권신고서의 거짓기재·기재누락 ·································································· 14
1. 판단기준 ····················································································································· 14
2. 회계감사인의 의견 ······································································································ 15
3. 시장조성 포기가능성 ··································································································· 16
4. 최대주주를 위하여 담보제공 ······················································································· 18
5. 주당 공모가액 결정내역 ······························································································ 19
6. 자금사용목적 ·············································································································· 21
7. 대출금채무 대위변제 및 주채무자의 파산 사실 ··························································· 23
8. 최대주주 ····················································································································· 25
9. 외국법인의 최대주주 ··································································································· 26
10. 납입가장의 경우 ········································································································· 31
11. 실제로 수리된 증권신고서임을 요하는지 ····································································· 31
제3절 인수인의 책임 ··································································································· 33
1. 감사보고서 특기사항 기재누락과 인수인의 과실 ·························································· 33
2. 인수인의 의견란에 기재된 최대주주 자본구조 ····························································· 35
3. 외국법인의 최대주주 거짓기재와 인수인의 책임 ·························································· 38
4. 발행인의 거짓기재와 대표주관사의 책임 ····································································· 41
5. 과징금부과대상자에 해당하는 인수인의 요건 ······························································· 44
6. 인수인의 실사의무 범위 ······························································································ 46

제2장 유통공시
제1절 정기보고서 ········································································································· 54
1. 최대주주 거짓기재 ······································································································ 54
(1) 명의상 주주 ············································································································ 54
(2) 허위의 매매계약 ······································································································ 56
2. 파생상품계약사실 기재누락 ························································································· 57
3. 재무제표 거짓기재 ······································································································ 58
(1) 매도가능증권 등을 과대계상 ···················································································· 58
(2) 횡령 후 단기대여금으로 처리 ·················································································· 58
(3) 가공채권을 허위계상 ······························································································· 59
(4) 대여금 등을 과대계상 ······························································································ 59
(5) 양도성예금증서 등을 허위계상 ················································································· 60
제2절 주요사항보고서 ································································································· 62
1. 제출의무 위반에 대한 귀책사유 ·················································································· 62
2. 대차거래가 자기주식 ‘처분’에 해당하는지 ···································································· 64
3. 주요사항보고서 제출의무를 부정한 사례 ····································································· 67
4. 전환사채인수 시 주요사항보고서 제출 여부 ································································ 70
5. 제출의무 면제여부 ······································································································ 71

제3장 지분공시
제1절 주식등의 대량보유상황 보고 ········································································· 76
1. ‘보유’의 의미 ·············································································································· 76
(1) 종국적 권리행사 불요 ······························································································ 7
(2) ‘취득 또는 처분권한’의 의미 ···················································································· 77
(3) 자기계산으로 주식을 취득한 경우 ············································································ 78
(4) 담보로 주식을 취득한 경우 ····················································································· 82
(5) 주식대차거래 ··········································································································· 84
2. 공동보유자 해당여부 ··································································································· 85
(1) 차명주식의 명의대여자와 실소유자 ·········································································· 85
(2) 원리금보장약정이 있는 경우 ···················································································· 85
(3) 시세조종 공모자 ······································································································ 86
(4) 공동보유자 관계를 부정한 사례 ··············································································· 87
(5) 공동보유자 관계를 긍정한 사례 ··············································································· 88
3. 경영참여목적 ·············································································································· 89
(1) 경영참여목적의 의미 ······························································································· 89
(2) 확정적 목적일 것을 불요 ························································································· 90
(3) 경영참여목적으로 보고한 직후 전량 매도 ································································ 90
4. 전환가액조정으로 인한 신규보고의무 ·········································································· 91
5. 냉각기간 ····················································································································· 91
(1) 변동보고의 경우 ······································································································ 91
(2) 변동보고의 형식으로 대표보고자 연명보고에 추가된 특별관계자 ······························ 93
6. 대량보유보고의무 위반죄의 고의를 부정한 사례 ·························································· 94
7. 공동정범 성립여부 ······································································································ 95
(1) 계좌명의 대여자 ······································································································ 95
(2) 매수명의 대여자 ······································································································ 97
8. 공범성립여부 ·············································································································· 97
제2절 임원등의 특정증권 등 소유상황보고 ··························································· 99
1. 주요주주 판단기준 ······································································································ 99
2. 소유상황 보고의무의 고의 존재여부 ············································································ 99
3. 계산주체 입증관련 ···································································································· 100
제3절 단기매매차익 반환제도 ·················································································· 103
1. 단기매매차익 반환제도의 위헌여부 ············································································ 103
2. 반환대상자(정직 중인 직원) ······················································································· 105
3. 단기매매행위 해당여부 ······························································································ 106
(1) 차명계좌에서 매도하고 실명계좌로 매수한 경우 ····················································· 106
(2) 내부자 행위와 동일시할 수 있는 경우 ··································································· 107
4. 단기매매차익 반환의 예외 ························································································· 109
(1) 예외사유에 관한 해석 ···························································································· 109
(2) 주요주주이긴 하나 경영에 직·간접적으로 참여하지 않은 경우 ······························ 112
(3) 회사와 관계없는 개인투자자인 주요주주 ································································ 113
(4) 적대적 기업인수를 시도한 자가 단념하고 주식을 처분 ··········································· 115
5. 단기매매차익의 산정방법 ·························································································· 115
(1) 매매차익 해당여부(경영권 프리미엄) ······································································· 115
(2) 매매계약 체결일 기준 ···························································································· 118
(3) 초일 산입 ············································································································ 119
6. 반환청구권 행사기간의 기산일 ·················································································· 120
7. 회사가 단차를 대납하여 대표이사의 횡령을 인정한 사례 ··········································· 120
제4절 의결권 대리행사 권유 ···················································································· 122
1. 감사선임과 의결권대리행사 권유 ··············································································· 122
2. 상법상 의결권 대리행사 관련 ·················································································· 123
(1) 대리인의 자격제한 ································································································· 123
(2) 대리권을 증명하는 서면 ························································································· 124
제5절 공개매수 ············································································································ 125
1. 공개매수신고서 중요사항 미기재 ··············································································· 125

제4장 공시위반의 실효성 확보장치
제1절 벌칙 ···················································································································· 130
1. 이사가 아닌 자가 대표이사 신분을 이용 ··································································· 130
2. 징역과 벌금의 병과 ·································································································· 131
3. 양벌규정 관련 ··········································································································· 132
(1) ‘법인의 대리인, 사용인, 그 밖의 종업원‘의 의미 ···················································· 132
(2) ‘법인의 업무에 관하여’의 의미 ··············································································· 132
(3) 합병으로 소멸한 법인의 양벌규정에 따른 책임 ······················································ 133
(3) 양벌규정으로 행위자 처벌가부 ··············································································· 133
(4) 보고의무위반에 대한 양벌규정 적용 ······································································· 134
제2절 과징금 ················································································································ 136
1. 분·반기보고서의 공시위반에 대한 과징금 법정한도 ················································· 136
2. 과징금부과처분의 취소범위 ······················································································· 138
(1) 전부취소 ················································································································ 138
(2) 위법한 부분이 부과처분에 영향을 미치지 않은 경우 ·············································· 139
3. 과징금 산출한도가 명시되어 있지 않은 경우 ····························································· 140
4. 과징금 부과대상자로 규정된 ‘공인회계사’의 범위 ······················································ 142
5. 고의·과실은 실제 위반행위자를 기준 ······································································· 144
6. 대표이사의 적극적 공시위반과 회사의 책임 ······························································ 145
7. 하나의 위반행위에 재차 과징금을 부과하였는지 여부 ················································ 146
8. 회사분할 시 과징금 부과 ·························································································· 147
9. 회생절차 개시 후 과징금부과 ···················································································· 148
10. 형사처벌과 과징금의 병과 ························································································· 149
11. 과징금 감경 ·············································································································· 149
12. 대표이사가 형벌을 받은 사실 고려여부 ····································································· 151
13. 비례원칙에 위반여부 ································································································· 152
14. 이의신청 후 취소소송 제소기간 ················································································ 153
제3절 과태료 등 기타조치 ························································································ 156
1. 과태료 ······················································································································ 156
2. 경고조치 ··················································································································· 157
3. 검찰고발 조치 ··········································································································· 157
4. 대량보고의무 위반으로 인한 주식처분명령 ································································ 158
제4절 손해배상 ············································································································ 163
1. 손해배상청구권자(유통시장에서의 취득자 포함여부) ··················································· 163
(1) 포함되지 않는다는 판례 ························································································· 163
(2) 포함된다는 판례 ···································································································· 164
2. 손해배상의무자 ········································································································· 165
(1) 대표주관사가 아닌 공동주관사 ··············································································· 165
(2) 회계법인 ················································································································ 166
3. 면책사유 ··················································································································· 168
(1) 상당한 주의의 판단기준 ························································································· 168
(2) 해당 법인의 이사 ·································································································· 168
(3) 인수인 ··················································································································· 169
(4) 회계법인 ················································································································ 170
4. 손해배상액 ················································································································ 171
(1) 손해배상액 추정조항의 취지 ·················································································· 171
(2) 정상주가 형성일 후 매도한 경우 등 ······································································ 173
5. 손해인과관계 ············································································································ 173
(1) 손해인과관계 입증 및 가격하락의 불분명 ······························································ 173
(2) 공표 전 매각분 ······································································································ 175
6. 제척기간(‘청구권자가 해당 사실을 안 날로부터’의 의미) ············································ 176
제5절 제재절차 관련 ·································································································· 177
1. 처분의 사전통지 ········································································································· 177
(1) 처분내용 기재 ······································································································· 177
(2) 처분서와 달리 기재 ······························································································· 179
2. 처분의 이유제시 ······································································································· 179
3. 확인서나 문답서의 증거능력 ····················································································· 182
(1) 회계감리과정의 확인서나 문답서 ············································································ 182
(2) 불공정거래 조사과정의 문답서 ··············································································· 182

제5장 기업공시 관련 회사법
제1절 신주발행 ············································································································ 186
1. 신주발행 시 손실보전약정의 효력 ············································································· 186
2. 경영권 방어목적의 제3자배정 ···················································································· 187
3. 현물출자에 의한 제3자배정 ······················································································· 188
4. 제3자의 현물출자와 일반주주의 신주인수권 ······························································ 189
5. 주주배정과 제3자배정 방식의 구별기준 ····································································· 191
6. 신주인수권의 양도 ···································································································· 191
7. 신주발행유지청구 ······································································································ 193
(1) 신주발행유지청구를 기각한 사례 ············································································ 193
(2) 신주발행유지청구를 인용한 사례 ············································································ 195
8. 신주발행무효의 소 ···································································································· 196
(1) 무효원인 및 그 유무의 판단 기준 ········································································· 196
(2) 경미한 절차상의 하자 ···························································································· 197
(3) 이사회 결의에 하자 ······························································································· 198
(4) 신주발행금지가처분이 발령된 상황에서 신주발행 ··················································· 199
(5) 검사인의 선임 및 조사보고가 없는 현물출자 ························································· 199
9. 신주발행부존재 확인의 소 ························································································· 199
10. 신주인수절차의 이행을 구하는 소 ············································································· 200
제2절 사채발행 ············································································································ 201
1. 기한의 이익 상실 ······································································································ 201
2. 사채권의 소멸시효 ···································································································· 201
3. 주주배정 후 실권된 부분에 대한 발행조건 변경 ························································ 202
4. 주주외의 자에 대한 전환사채 발행 ··········································································· 202
(1) 전환사채 발행의 기준 ···························································································· 202
(2) 무효라고 판단한 사례 ···························································································· 203
(3) 유효라고 판단한 사례 ···························································································· 204
5. 전환권 부여약정의 효력 ···························································································· 204
6. 전환사채발행무효의 소 ······························································································ 205
(1) 허용여부 및 무효원인 판단 방법 ··········································································· 205
(2) 무효원인 ················································································································ 206
(3) 제소기간 경과 후 무효사유 추가 주장 ··································································· 207
제3절 자기주식 취득 및 처분 ·················································································· 208
1. 금지규정을 위반하여 자기주식 취득 ·········································································· 208
2. 무상으로 자기주식을 취득 ························································································· 209
3. 제3자 명의로 자기주식 취득 ····················································································· 209
(1) 무효라고 판시한 사례 ···························································································· 209
(2) 유효라고 판시한 사례 ···························································································· 210
4. 특정목적을 위한 자기주식의 취득 ············································································· 211
5. 특정주주에 자기주식을 처분 ····················································································· 212
제4절 회사의 합병 및 분할 ······················································································ 214
1. 흡수합병 시 존속회사의 증가할 자본액 ····································································· 214
2. 합병비율과 합병무효 ································································································· 214
(1) 관련법령에 따라 합병비율을 산정한 경우 ······························································ 214
(2) 순자산액 기준 17:1임에도 합병비율을 1:1로 한 경우 ············································ 215
3. 분할회사 채무의 승계와 책임 ···················································································· 216
(1) 분할 당시에는 이행기가 도래하지 아니한 채무 ······················································ 216
(2) 채무성립의 기초가 되는 법률관계가 발생한 경우 ··················································· 218
(3) 분할 후 책임의 제한 ····························································································· 218
제5절 기타 ···················································································································· 223
1. 이사 등과 회사 간의 거래 ························································································ 223
(1) 상법 제398조의 취지 등 ······················································································· 223
(2) 이사 등과 회사 간의 거래에 해당여부 ··································································· 224
(3) 이사회 승인을 얻을 필요가 없는 경우 ··································································· 225
(4) 이사 등과 회사 간의 거래의 효력 ········································································· 225
2. 중요한 자산처분과 이사회의 결의 ············································································· 226
3. 이사 사임의 의사표시 ······························································································· 226
4. 감사선임 시기 ··········································································································· 227
5. 주식매수청구시 매수가격결정 ···················································································· 227
(1) 상장법인 ················································································································ 227
(2) 비상장법인 ············································································································ 231
6. 유가증권상장규정 ······································································································ 233
(1) 상장계약 및 상장폐지결정의 법적성질 ··································································· 233
(2) 유가증권상정규정의 법적성질 ················································································· 234
(3) 회사정리절차 개시신청을 이유로 상장폐지결정을 하도록 정한
유가증권상장규정은 무효 ······················································································· 234
7. 상장폐지결정 ············································································································ 235
8. 우리사주조합 ············································································································ 236
(1) 신주인수권부사채를 우선적으로 배정받을 권리가 있는지 ········································ 236
(2) 우리사주조합원의 당사자능력 ················································································· 237

제6장 기타 증권관련 범죄
제1절 납입가장죄 ········································································································ 240
1. 규정취지 ··················································································································· 240
2. 납입가장죄의 주체(신분범) ························································································· 241
(1) 대주주로서 증자과정을 지시·관여한 자 ································································ 241
(2) 회사를 사실상 경영한 자 ······················································································· 242
(3) 가장납입을 마음먹은 자에게 자금을 대여한 자 ······················································ 243
3. 납입가장죄 성부 ······································································································· 244
(1) 회사를 위하여 사용하지 않은 경우 ········································································ 244
(2) 회사를 위하여 사용한 경우 ···················································································· 244
4. 신주발행의 부존재에 이르는 경우 ············································································· 245
5. 전환사채의 인수과정에서 납입가장 ············································································ 246
6. 납입가장죄와 업무상 횡령 ························································································· 247
7. 납입가장죄와 업무상 배임 ························································································· 247
8. 납입가장과 증권신고서 허위기재 ··············································································· 248
제2절 횡령·배임 ·········································································································· 249
1. 경영판단원칙과 배임죄의 고의 ·················································································· 249
2. 관계회사에 대한 자금대여와 경영판단 ······································································· 250
3. 시가보다 현저히 낮은 가액으로 신주 등을 발행한 경우 ············································ 251
4. 전환사채 발행가격 관련 배임죄 ················································································ 252
5. 법률상 효력 없는 채무부담 ······················································································· 254
6. 주식인수 대금을 개인적 용도로 사용 ········································································ 256
7. 특정주주에 대하여 유상증자 참여대가로 사례금 지급 ················································ 257
8. 발행주식의 실질가치가 0원임에도 액면가격으로 인수 ··············································· 257
9. 개인적인 이익을 위한 주식교환거래 ·········································································· 259
10. 상장주식을 비상장주식으로 교환 ··············································································· 260
11. 경영권프리미엄이 가산된 주식을 시가보다 고가로 인수 ············································ 261
12. 비자금 조성행위 ······································································································· 262
13. LBO방식의 기업인수와 배임죄 ·················································································· 263
14. 회사 자금을 사적인 용도로 처분한 후 주총결의가 있는 경우 ···································· 264
15. 시세조종과 업무상 배임, 업무상 횡령 ······································································· 265
제3절 사기 등 ·············································································································· 267
1. 분식회계로 금융기관을 기망하여 대출 ······································································· 267
2. 주식담보대출과 사기죄 ······························································································ 267
3. 거래목적물이 증자 후 주식인 점을 알리지 않은 경우 ··············································· 268
4. 범죄수익가장죄 ········································································································· 268

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