예측정보 규제에 관한 연구

Abstract

This article deals with the regulation on the soft information, or the forward-looking information under the U.S. federal securities laws and the Capital Market and Financial Investment Business Act(hereinafter referred to as CMFIBA). Article 119 (3) of CMFIBA provides the scope of forecast information including forecast or prospects for the financial status of the issuer, its business performance in the future, etc, and Article 125 (2) of CMFIBA adopted four safe harbor provisions including the description of being a forecast information, the grounds for judgement related to the forecast or prospect, good faith on the basis of a reasonable ground, and meaningful cautionary statements. Under the U.S. federal securities laws, the term forward-looking information means a statement containing a projection of revenues, income (including income loss), earnings (including earnings loss) per share, capital expenditures, dividends, capital structure, or other financial items. The issuer shall not be liable with respect to any forward-looking information if and to the extent that the forward-looking information is identified as a forward-looking information, and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking information; or immaterial; or the plaintiff fails to prove that the forward-looking information if made by a natural person, was made with actual knowledge by that person that the statement was false or misleading; or if made by a business entity, was made by or with the approval of an executive officer of that entity, and made or approved by such officer with actual knowledge by that officer that the statement was false or misleading. Although U.S. federal securities laws require that known trends or uncertainties be disclosed in certain SEC filings, forward looking information needs not be disclosed. That is, the issuers are encouraged, but not required, to supply forward-looking information. However, issuers must include a section entitled MD&A in registration statement and in certain SEC filings. The MD&A affirmatively requires a certain amount of forward-looking disclosure. The MD&A section is intended to give the investor an opportunity to look at the company through the eyes of management by providing short-term and long-term analysis of the business of the company. The various tests employed by the SEC and the U.S. courts for the safe harbor requirements are likely to have a great influence on interpretation of the safe harbor requirements under CMFIBA by the Korean regulatory authorities and the Korean courts. The introduction of the MD&A in the U.S. securities laws to the Korean CMFIBA is highly recommended to enhance voluntary disclosure for the protection of the investors.