분식회계 제재에 대한 법적 통제 연구 - 행정제재와 시장조치에 대한 비례원칙·입증책임을 중심으로 -

초록

When accounting fraud is detected, an interconnected enforcement process unfolds: an accounting review by the Financial Supervisory Service (FSS), administrative sanctions by the Securities and Futures Commission (SFC), and market measures by the Korea Exchange (KRX)—namely, trading suspension and listing-eligibility review. Although all of these are rights-infringing measures that ought to be constrained by the principle of proportionality and the imposing authority's burden of proof, fragmented jurisdiction prolongs appeals and shifts the resulting harm onto blameless shareholders. While the affected firm experiences this as a single, connected regulatory process, SFC administrative sanctions and KRX market measures differ fundamentally in legal nature. SFC sanctions are subject to legal controls but are administered ineffectively, whereas KRX market measures—treated as private-law contracts—lack such controls by design. In particular, a "regulatory inversion" arises whereby the KRX market measures, though imposing the most severe restriction on rights, are subject to the weakest (private-law) control. This inversion comes into view only when the cumulative excess generated by the successive layering of administrative sanctions and market measures, together with the resulting harm to innocent ordinary shareholders, is placed at the center of the proportionality analysis. Drawing on case analyses of Samsung Biologics and Daewoo Shipbuilding and a comparative legal study of the United States, Japan, and Germany (EU), this study proposes the following. For administrative sanctions: refine the operation of existing controls by specifying the standard of proof and reviewing cumulative proportionality. For market measures: enact legislation that recognizes their dispositive nature and provides avenues for appeal and remedy, introduce phased and proportionate trading suspensions, and establish investor-remedy mechanisms.

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