The Supreme Court ruled that using the high-speed processing services by the internal scalper does not correspond to the “illegal means, plans or artifice.” It decided that receiving the price from the inside scalper for providing the high-speed system connected to securities company’s internal system did not consist illegal act. The decision result from considering the current situation of high-speed services by inside scalper and the structure of the ELW market.
But it is difficult to say that the structure is fair while a number of general investors is receiving damage, the inside scalper in a specific relationship with the securities company that benefits from the program based on the knowledge of LP’s order algorithm based on the experience during his work for the securities company and superior speed. In particular, it is insufficiently dealt with the facts about whether the inside scalper’s existence or reality of a high speed services was known or unknown to the general investigator, whether there was thorough analysis of the profits and losses by the system under the overall structure, and whether in the process faithful duty was kept or the principle of good faith compliance was implemented to the general investors by the securities firms.
It is also needed to discuss that if only the behavior of the internal scalper could be object for the criminal penalties, this can really bring about shock to Korea Stock market, rather than discussing general DMA or external scalper’s high-speed trading (HFT: High frequency trading), on the circumstances that the court make the policy determination that this kinds of act should be resolved by providing the administrative regulations rather than to be criminally punished.
In addition, it is also required to determine that securities company is in violation of the obligations to keep fiduciary duty to general trader or at least good faith attention duty to the client in accordance with civil law article 681, and whether or not such damage or loss caused as a result of violation of those duties consists of the criminal breach of trust in the business.

• 안성수(법무부 형사사법공통시스템 운영단장 부장검사) | An, SeongSu