국제증권발행에서 투자설명서 부실표시책임의 준거법 결정원칙

초록

When securities are offered to the public, a prospectus drawn up by an issuer should be distributed mainly by underwriters to investors in order for them to know the potential investment risks. Each country has its own capital markets law regulating a prospectus by way of promulgating administrative regulations, criminal punishment and civil liability to enforce a prospectus with accurate information to be drawn up and distributed so that investors are provided with accurate information on the issuer and the securities in question. The provision of civil liability on false information or misrepresentation in a prospectus is in favor of investors, and there is a special rule against general civil liability under the civil code. In a case where an issuer is a foreign company and/or the market where securities are offered to the public is a foreign capital market, it is not certain whether the prospectus liability clause in the Korean capital markets law should be applied to those cases and which law should govern those cases. If a securities offering has foreign element(s), the applicable law on prospectus liability should be determined by the choice-of-law rules, irrespective of the extraterritorial application clause in the Korean capital markets law. Prospectus liability should be characterized as tort from the perspective of private international law. Under the traditional choice-of-law rules, torts are governed by the law of the place where the harmful event occurred which means both the place where the damage occurred (Erfolgsort) and the place of the event giving rise to it (Handlungsort). However, in the cases of pure economic damages such as prospectus liability in a cross-border offering, the place where the damage took place cannot be localized to a certain country and only the place of the event giving rise to it can exist. When it comes to the prospectus liability, the place of the event giving rise to the liability is the place where the relevant capital market is located. The principles which prevail the principle of lex loci delicti can be avoided by applying the escape clause in the Korean private international law.

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