證券集團訴訟의 發生要因分析과 法的 對應課題

Abstract

The Securities Class Action Act took effect on January 1 2007 to all of the listed companies, which was firstly effective on January 1 2005 only to the large scaled listed companies above 2,000 billion won in assets. The Act was modelled after the US Private Securities Litigation Reform Act of 1995. One of the main purposes of the Act is to prevent the damaged investors from abusing the class action. Nevertheless the class action can be easily arranged and taken under the current Act. The limitation of bringing a suit to three times within recent 3 years might not be enough to prevent from abusing the suit, as long as legal litigation causes are fulfilled. In suing damages by the reason of false or misleading disclosure in filling document, prospectus, or auditing report, the plaintiff has only to show that there have been only the illegal disclosure and the damages. In other words the plaintiff does not have to make evidence that he actually relied on the untrue disclosure. This is almost same in insider trading and manipulative actions. This paper suggests two kinds of legal responses to prevent abusing a suit. First is concerned with corporate management strategies. All of the listed companies have to structure the internal control systems, special litigation committee and in-house legal counsel as well as enhancement of the corporate disclosure systems not to be the target of the class actions. Second is related to legislative concerns. A limitation is to be placed on the maximum of compensation to be given to the lawyers in charge of the actions, and the power to place a limit should be given to the judge. The proportionate liability system should be introduced to measuring the damages caused by misrepresentation in filing document, prospectus and auditing reports. The current out-of pocket measure system should be reasonably modified for measuring the actual damages in misrepresentation cases. Moreover as long as the internal control system of company had been effectively operated in relation to compliance, due care should be presumed to be already exercised, which means that the plaintiff have to prove that the defendant is in breach of duty of care, and the defendant(s) is(are) immune from the liability of damages. Lastly, in the perspectives of judicial policy the court should review the litigation requirements of the class action strictly and show the greater role in balancing the protection of corporate management and investors.