다른 사람들이 백번을 할 때 천번을 하라. 2022. 8. 정순섭 교수님의 지도로 박사학위를 받을 때 교수님께서 논문 내지에 써주신 글귀이다.
2021년 3월 서울대 법학전문대학원에서 금융법을 연구하고, 학생들을 가르칠 기회를 얻게 되었다. 2022년 8월에는 그간 마음에만 품고 있었던 박사논문을 완성하여 학위를 받을 수 있었다.
모든 것이 지도교수이신 정순섭 교수님의 은혜이다.
박사논문을 완성하고, 그에 맞추어 출간을 하려고 하였으나 과연 출 간을 해도 되는가 하는 부담이 있었다. 내가 과연 이 주제에 대해 천번 을 생각해보았나. 아니 그에 모자르더라도 백번을 고민하였나.
부끄러움이 여전함에도 박사논문의 내용이 최근 인공지능을 이용한 금융거래 등 법적 문제해결에 도움이 될 것이라 생각하여 뒤늦게 출간 을 결심하게 되었다.
출간 준비를 하며 박사논문을 읽고 정리를 하다보니 다시금 교수님 의 학은을 되새기게 된다.
교수님께 받은 학은을 직접 갚을 방법은 없으리라. 금융법을 공부하 고, 연구하는 학생들을 잘 가르치고, 지도하는 것이 작으나마 보답하는 길이라 생각한다.
그리고 이 글을 빌어 낳아주시고 길러주신 부모님, 영원한 반려인 나 지경, 또 다른 나인 이우현에게 감사의 말을 전하고 싶다.
2025. 12.
서 문
제1장 서 론 ·············································································· 1
제1절 연구의 배경 ··································································· 3
1. 제4차 산업혁명과 알고리즘 거래 ········································· 3
2. 알고리즘 거래의 전개 ··························································· 4
3. 알고리즘 거래가 제기하는 금융법적 쟁점들 ························ 8
제2절 연구의 목적 ·································································· 10
1. 연구의 목적 ········································································ 10
2. 연구의 방법론 ····································································· 13
3. 연구의 범위 ········································································ 15
제3절 연구의 구성 ·································································· 17
제2장 알고리즘 거래와 법적 규제 ··································· 23
제1절 의의 ············································································· 25
1. 알고리즘과 알고리즘 거래의 개념 ······································ 25
2. 유사개념과의 비교 ······························································ 28
3. 본고에서 다루는 알고리즘 거래의 범위 ······························ 35
제2절 알고리즘의 내용과 기술적 발전 ····································· 36
1. 알고리즘의 내용 ·································································· 36
2. 알고리즘 거래의 전개와 기술적 발전 ································· 51
3. 알고리즘 거래의 현황 ························································· 56
제3절 법적 규제 필요성과 전개 ·············································· 60
1. 법적 규제 필요성 ································································ 60
2. 법적 규제의 전개 ································································ 73
3. 법적 규제의 발전단계 구분 ················································ 77
제4절 각국의 법적 규제와 우리나라의 상황 및 평가 ··············· 83
1. 문제의 소재 ········································································ 83
2. 각국의 법적 규제 ································································ 87
3. 우리나라의 규제현황과 평가 ············································· 134
제5절 소결 ··········································································· 150
제3장 시장안정성 규제 ······················································ 153
제1절 개관 ··········································································· 155
제2절 시장안정성 규제의 의의 ·············································· 157
1. 의의 ··················································································· 157
2. 시장붕괴의 발생과 대응 ···················································· 159
3. 이론적 규제모델 ································································ 164
제3절 사전적 규제 ································································ 166
1. 의의 ··················································································· 166
2. 알고리즘 거래 및 고빈도 거래의 정의 ····························· 167
3. 알고리즘 거래자의 등록과 알고리즘의 공개 ····················· 170
4. 기술적 시장접근규제 ························································· 179
제4절 상시적 규제 ································································ 193
1. 의의 ··················································································· 193
2. 포지션 보고의무 ································································ 194
3. 거래소의 역할 ··································································· 197
4. 감독당국의 역할 ································································ 213
제5절 사후적 규제 ································································ 217
1. 의의 ··················································································· 217
2. 현행 제도의 한계 ······························································ 217
3. 서킷브레이커 제도의 재고(再考) ········································ 220
4. 제거조치의 도입 검토 ······················································· 222
5. 명백한 오류거래 취소제도의 도입 검토 ···························· 228
제6절 알고리즘 거래의 국제적 특성과 시장안정성 규제 ········· 230
1. 알고리즘 거래의 역외성 ···················································· 230
2. 규제차익 발생과 국가단위 규제의 한계 ···························· 231
3. 국제적 공조 논의 ······························································ 234
4. 국제증권규제기구(IOSCO)의 개요 ····································· 235
5. IOSCO의 시장안정성 규제 관련 보고서 ··························· 236
제7절 소결 ··········································································· 244
제4장 금융투자업자 규제 ················································· 249
제1절 개관 ··········································································· 251
제2절 금융투자업자 규제의 의의 ··········································· 253
1. 의의 ··················································································· 253
2. 규제 필요성 ······································································· 254
제3절 현행 규제체계와 문제점 ·············································· 258
1. 투자일임업자 규제의 개관 ················································ 258
2. 진입규제 ············································································ 259
3. 영업행위규제 ····································································· 261
제4절 금융투자업자 규제의 재검토 및 새로운 접근필요성 ······ 267
1. 종래의 금융투자업자 규제의 재검토 ································· 267
2. 진입규제의 재검토 ···························································· 268
3. 영업행위규제의 재검토 ······················································ 276
4. 알고리즘 거래에 특유한 규제의 보완 ······························· 280
5. 정리 ··················································································· 294
제5절 전자적 투자조언장치 규제 ··········································· 296
1. 전자적 투자조언장치 규제의 도입 ···································· 296
2. 전자적 투자조언장치 규제의 내용 ···································· 298
3. 알고리즘 거래 규제와의 관계 ··········································· 301
4. 미국의 로보-어드바이저 규제 ··········································· 303
제6절 전자거래시 착오, 오류 문제 ········································ 307
1. 의의 ··················································································· 307
2. 한맥투자증권 사건에서의 논의 ·········································· 309
3. 외국의 제도 ······································································· 318
4. 우리나라의 제도개선과 문제점 ·········································· 325
제7절 역외투자일임업자의 투자자에 대한 책임 확보수단 ········ 334
1. 문제의 소재 ······································································· 334
2. 현행규제의 문제점 ···························································· 335
3. 개선방향 ············································································ 337
제8절 소결 ··········································································· 340
제5장 불공정거래 규제 ······················································ 345
제1절 개관 ··········································································· 347
제2절 불공정거래 규제의 의의 ·············································· 349
1. 의의 ··················································································· 349
2. 기존 불공정거래 규제의 적용가능성 ································· 351
3. 외국의 입법례 ··································································· 357
4. 실제 사건 ·········································································· 365
5. 정리 ··················································································· 379
제3절 시세조종행위 ······························································· 380
1. 문제의 소재 ······································································· 380
2. 시세조종행위의 의의 ························································· 380
3. 시세조종행위의 구성요건 ·················································· 382
4. 주관적 구성요건의 인정방법 ············································· 387
5. 일반적 거래양태 기준 ······················································· 389
6. 허수성 주문 기준 ······························································ 394
7. 종래의 시세조종 판단기준의 검토 ···································· 402
8. 알고리즘 거래에 대한 시세조종규정 적용방안 ·················· 406
9. 그 밖의 문제 ····································································· 422
제4절 미공개중요정보 이용행위 ············································· 424
1. 의의 ··················································································· 424
2. 알고리즘 거래에 있어 미공개중요정보 이용가능성 ··········· 426
3. 미공개정보의 가공 내지 분석을 통한 이용행위 ················ 429
4. 생성정보 이용행위 ···························································· 433
5. 논의의 정리 ······································································· 435
제5절 사기적 부정거래행위 ··················································· 436
1. 문제의 제기 ······································································· 436
2. 사기적 부정거래 규정의 해석 ··········································· 438
3. 알고리즘 거래장치의 이용이 부정한 수단 내지 위계사용에 해당하는지 ······················································ 444
4. 적극적 배려의무의 존부 ···················································· 461
5. 시장질서교란행위 규정과의 관계 ······································ 462
6. 논의의 정리 ······································································· 465
제6절 시장질서교란행위 ························································ 466
1. 의의 ··················································································· 466
2. 구성요건의 해석 ································································ 467
3. 고의, 과실의 필요성 여부 및 행위자의 해석 ···················· 472
4. 각국의 규제 ······································································· 473
5. 법적 규제 방향 ································································· 484
제7절 실효성 확보수단 ·························································· 497
1. 문제의 제기 ······································································· 497
2. 형사책임의 한계와 대안 ···················································· 498
3. 이익액 산정을 전제로 한 책임수단의 문제 ······················· 504
4. 행위자 책임의 한계와 양벌규정의 활용가능성 ·················· 508
5. 집행에 있어 해외공조 필요성 ··········································· 513
6. 정리 ··················································································· 523
제8절 소결 ··········································································· 524
제6장 결론 ············································································ 531
제1절 연구의 정리 ································································ 533
제2절 앞으로의 과제 ····························································· 545
참고문헌 552
