미국법상 증권사기 관여자에 대한 민사책임
Securities Fraud Secondary Actor Liability in US
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In January 2008, the US Supreme Court ruled that a firm could not be held liable for a securities fraud merely because it was a business partner of a company that committed the fraud. The majority of the Supreme Court is concerned about the competitiveness of America’s capital markets. Various actors participate in various ways in the securities fraud. The main vehicle for actions against those actors is section 10(b) of the Securities Exchange Act of 1934 and the corresponding SEC Rule 10b-5 in US. The US Supreme Court held in 1994 Central Bank that there is no private right of action against parties aiding and abetting securities law violations under section 10(b). Afterwards, the investors who suffer from securities fraud have tried to establish ‘scheme liability’ in order to avoid this aiding and abetting limitation. The 2008 Stoneridge case rejects the ‘scheme liability’ theory which is based on Rule 10b-5(a) and (c) rather than (b). Korea has introduced the ‘catch-all securities antifraud provision’. This provision is very similar to the US Rule 10b-5. In order to interpret the provision appropriately, this article examines the US system and court’s interpretation and recommends the proper scope of secondary actor liability. Chapter II gives an overview of the second actor liabilities under the Securities Act of 1933 and the Securities Exchange Act of 1933. The Securities Act provides liability for misstatements or omissions in the registration statement and liability for material misstatements or omissions by sellers of securities. The Securities Exchange Act provides a private remedy for investors injured by the prohibited manipulative conduct and liability for misleading statements. Chapter III examines the federal court cases for the scope of second actors who is liable under Section 10(b) and Rule 10b-5. Before Central Bank, the federal circuits allowed the investors pursue the aiders and abettors of securities fraud. The Central Bank decision repudiated the entire aiding and abetting cause of action. Chapter IV analyzes the Stoneridge Investment Partners v. Scientific Atlanta case. The Stoneridge rejects the ‘scheme liability’ theory. The majority argues that existing remedies adequately police culpable conduct and to expand the scope of liability in private litigation would harm shareholders. It also suggests that US need to preserve competitiveness of securities markets. Chapter V gives a brief overview of the securities fraud liability and suggests some recommendation about the proper scope of secondary actor liability from the US second actor liability and its implication.
Abstract
In January 2008, the US Supreme Court ruled that a firm could not be held liable for a securities fraud merely because it was a business partner of a company that committed the fraud. The majority of the Supreme Court is concerned about the competitiveness of America’s capital markets. Various actors participate in various ways in the securities fraud. The main vehicle for actions against those actors is section 10(b) of the Securities Exchange Act of 1934 and the corresponding SEC Rule 10b-5 in US. The US Supreme Court held in 1994 Central Bank that there is no private right of action against parties aiding and abetting securities law violations under section 10(b). Afterwards, the investors who suffer from securities fraud have tried to establish ‘scheme liability’ in order to avoid this aiding and abetting limitation. The 2008 Stoneridge case rejects the ‘scheme liability’ theory which is based on Rule 10b-5(a) and (c) rather than (b). Korea has introduced the ‘catch-all securities antifraud provision’. This provision is very similar to the US Rule 10b-5. In order to interpret the provision appropriately, this article examines the US system and court’s interpretation and recommends the proper scope of secondary actor liability. Chapter II gives an overview of the second actor liabilities under the Securities Act of 1933 and the Securities Exchange Act of 1933. The Securities Act provides liability for misstatements or omissions in the registration statement and liability for material misstatements or omissions by sellers of securities. The Securities Exchange Act provides a private remedy for investors injured by the prohibited manipulative conduct and liability for misleading statements. Chapter III examines the federal court cases for the scope of second actors who is liable under Section 10(b) and Rule 10b-5. Before Central Bank, the federal circuits allowed the investors pursue the aiders and abettors of securities fraud. The Central Bank decision repudiated the entire aiding and abetting cause of action. Chapter IV analyzes the Stoneridge Investment Partners v. Scientific Atlanta case. The Stoneridge rejects the ‘scheme liability’ theory. The majority argues that existing remedies adequately police culpable conduct and to expand the scope of liability in private litigation would harm shareholders. It also suggests that US need to preserve competitiveness of securities markets. Chapter V gives a brief overview of the securities fraud liability and suggests some recommendation about the proper scope of secondary actor liability from the US second actor liability and its implication.
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