자본시장법 제178조 제1항 제1호에 대한 연구

Capital Market and Financial Investment Business Act (CMFIB A)(142)) was enacted and entered into its effect since Feb. 4. 2009. Accordingly Commercial code was changed and other rules and regulations of FSS and FSC, KRX has been made and promulgated following the CMFIBA. Still number of problems are open to the scholars and attorneys in the financial area. One of the issues is how to interpret the CMFIBA Article 178-1-1 without violating the Korean Constitutional law. CMFIBA Article 178-1 contemplated that No one shall commit any of the following acts in connection with trading (including public offering, private placement, and sale in case of securities; hereafter the same shall apply in this Article and Article 179) or other transaction of financial investment instruments. CMFIBA Article 178-1-1 prohibits the activities utilizing an unfair artifice, scheme, or devices and anybody who violates this article shall be punished criminally. Due to the criminal sanction, CMFIBA Article 178-1-1 possibly declared as null and void by the Korean Constitutional Court because that Article is too vague to follow from the normnehmer`s standpoint. For the purpose of avoiding this occasion, this paper try to show some justifying reasons from the constitutional point of view relying upon the theories and progresses in Germany and make the meaning of the words, that is artifice, scheme, or devices one by one more clear enough to follow by giving some definitions and occasions when the words can be applied.