In 2012, U.S. Congress enacted the Stop Trading on Congressional Knowledge Act of 2012(STOCK Act). The purpose of this Act is to prohibit members of Congress or their employees from trading based on material, nonpublic information obtained in the exercise of their official duties. The STOCK Act, however, does not directly prohibit members of Congress from trading based on Congressional knowledge. Instead, the Act reaffirms that member of Congress and employees of Congress owe a duty of trust and confidence to the Congress, the United States Government, and the citizens of the United States. This expectation of trust and confidence is born out of the fact that the U.S. adheres to comprehensive antifraud provisions, such as Section 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder, as well as fiduciary and misappropriation theories when combating insider trading. Thus, if a member of Congress breaches a duty arising from trust and confidence by trading based on Congressional knowledge, his trading constitutes deception and thus will be charged with the violation of Rule 10b-5.
Unlike the U.S.’s securities laws, the Korean Financial Investment Services and Capital Markets Act(Captial Markets Act) has specific provisions on use of material, nonpublic information. In particular, Article 174① of the Act prohibits corporate insiders or certain corporate outsiders (i.e., constructive insiders and tippiees) from using material, nonpublic corporate information for their securities transactions. Also, Article 174② and ③ prohibits corporate outsiders from using certain market information (i.e. information regarding the initiation or discontinuance of a tender offer and information regarding acquisition or disposition of stocks, etc. in bulk) for their securities transactions. These provisions, however, cannot cover certain insider trading cases conducted by corporate outsiders, including a member of the National Assembly. Most importantly, the Capital Markets Act cannot cover instances where a member of the National Assembly, as a corporate outsider, uses market information, including legislative information for their securities transactions. One may argue that Article 178① should be used in order to close these regulatory loopholes. In doing so, however, the issue of nulla poena sine lege may be raised. Instead of relying on Article 178①, therefore, this paper calls for revising Article 174 of the Capital Markets Act to close the loopholes.