증권관련 부실공시책임의 손해인과관계에 관한 고찰

A Review on Causation for Improper Public Announcement Liability With Respect to Securities

The question of whether the traditional civil law causation theory can apply to impersonal transactions on securities involving open markets and unidentified many lies at the center of the research on liability for damages for securities. This is because there is a fundamental difference between traditional torts and cases involving securities, in terms of nature and structure. Considering this difference, our Securities Exchange Act sets forth the amount of damages and shifts the burden of proof on causation to the party to be liable for damages (section 15) for the liability for improper public announcements in the primary market, and applies the same rules to the liability for secondary markets (section 186(4) & (5)). However, as for the primary market, a market where investors acquire securities issued by a company for the first time, since the registration statement or prospectus are the only source materials for investment decisions, there is need to impose stricter responsibilities upon issuers or their officers and directors, in order to make sure the accuracy of the information. To the contrary, the public announcements in the circulation markets have a different characteristic: they are not the only link between the investors and the companies, as there is a consistent and continuing flow of information, andthey do not directly induce the investors to purchase securities. As such, the primary market and the circulation market are different in terms of legal structure. In Japan and the U.S.A., the primary market and the circulation market are classified differently and given separate legal structures, in my opinion, for this reason. In light of the above, it is necessary to differentiate the liabilityfor improper or insufficient public announcements according to the markets, and this paper suggests a legislative way to improve the system, focusing on the causation element in the necessary elements for liability for improper or insufficient public announcements. First, this paper proposes that it is necessaryto distinguish the primary market and the circulation market and to set forth civil liability for each in view of their differences and that it is desirable to enact a separate set of rules applicable to the circulation market. Second, as for the liability for the primary market, it supports the contents of the Act on Capital Market and Financing and Investment Industry that change thetiming of calculating the amount of damages from the close of trial to the time of filing, and proposes a way to improve them. Third, this papers suggests that, as for liability for the circulation market, the liability for the issuers and the liability for the officers and directors be differentiated, and that there be differentliability requirements for them. Specifically, it proposes that a legislatively determined amount of damages be set only for the issuers, where the offenses are grave and seriously illegal and that the measure of damages be set through a way different from the current one.