미국증권대표당사자소송에서의 인과관계에 관한 최근 논의가 우리 법의 운용에 끼칠 수 있는 영향에 대한 일고

The South Korean legislature passed a bill establishing a private securities class action system on January 20, 2004. The law has been in force since January 01, 2005. According to a recent Korean newspaper article, there has been not one Korean securities class action case filed since 2005. There are many reasons why no case has been filed up to now: Prerequisites like, at least 0.01% in aggregate of the issued and outstanding shares of the subject company, for 50 or more members is, too heavy a financial burden plus high risk for a plaintiff lawyer, and no discovery rules like American laws, etc. But the most important factors might be the difference of economical and judi-cial infrastructure between America and Korea. Nearly all of the factors are differ-ent: the size of security market, the judges, courts, lawyers, legal and educational backgrounds and the shareholders attitude. If these differences are ignored, any analysis will be flawed. So, I reviewed the pros and cons about loss and transaction causation as ele-ments in the Fraud-On-The-Market Theory of American scholars. I also reviewe the American Federal Court s interpretations on loss and transaction causation. In conclusion, this other complicated set of pros and cons of loss and trans-action causation theory in America doesn t need to introduced or should not be interpreted as a theory of Korean Securities Class Action. This American law theo-ry can be used in “ceteris paribus” (it means that other things being equal in Latin) conditions only. A more careful consideration will be necessary for a law-yer to initiate a Korean Class Action suit in Korea.