시장사기이론과 거래인과 관계의 재평가

초록

If an issuer makes a material misstatement in violation of securities laws, what must an investor who purchases the issuer’s shares show to establish causation in a securities fraud action for damages? The U.S. Supreme Court as well as district courts have traditionally analyzed the issue in terms of the twin concepts of “transaction causation” and “loss causation.” In the context of open securities market transactions, however, it is very hard for the plaintiff to prove that the defendant’s misstatement caused the plaintiff to engage in what has turned out to be a losing transaction. Considering this difficulty, the U.S. Supreme Court adopted the “fraud-on-the-market theory” in the 1988 case of Basic, which permits trial courts to accept a rebuttable presumption of reliance if plaintiffs can demonstrate that the stock at issue trades in an efficient market. The theory was upheld again by the Court in Halliburton case in 2014. The similar issues have been discussed in Korea, and the Korean Supreme Court also seems to have adopted the fraud-on-the-market theory. However, this Article believes that it is not appropriate to require plaintiffs to prove transaction causation who traded on the impersonal markets. Such markets differ from more traditional markets for consumer goods and services, in that prices are set by impersonal market mechanisms, rather than by face-to-face bargaining. In a face-to-face market, the reliance element serves to draw a causal connection between the material misrepresentation and harm to the purchaser. On the contrary, in the example of publicly traded securities, the transaction causation requirement simply does not play a useful role. All that really matters is that the defendant’s misrepresentation distorted the market price. Abandoning the traditional transaction causation/loss causation framework in trading on the impersonal markets, this Article argues that the focus for analyzing causation should instead be on developing standards for what the plaintiff need to prove in order to establish that the defendant’s misstatement affected the price paid.

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