미국 연방증권법상 부실공시에 대한 민사책임과 예측정보에 대한 면책조항 = Civil Liabilities for Misstatement or Omission in Disclosure Statements and Safe Harbors for Forward-looking Statements in U.S. Federal Securities Laws

다국어 초록 (Multilingual Abstract)

Since the enactment of the Securities Act of 1933, the civil liability provisions in connection with disclosure of corporate information have been criticized due to their severe liabilities. However, liability provisions for damage claims against issuer and secondary participants is one of the important characteristics of disclosure-related regulations. Remedies should be provided to investors who sustain loss resulting from misstatements or omissions contained in disclosures that they considered in making their investment decisions.
Civil liabilities under the federal securities laws consist of express and implied liability provisions. Regarding disclosure-based liabilities, there are three express liability provisions in both the Securities Act of 1933 and the Securities Exchange Act of 1934: Sections 11 and 12(a)(2) under the Securities Act and Section 18(a) under the Securities Exchange Act. In addition, Rule 10b-5 under Section 10(b) of the Securities Exchange Act, which is basis of implied civil liability, has historically been more important than the express liabilities. The reason for this is that plaintiffs have preferred Rule 10b-5 actions, because courts generally held that the implied civil liability is subject to fewer restrictions than are actions under the express liabilities.
Section 11 of the Securities Act concerns false registration statements filed with the SEC in connection with initial public offering. The function of Section 12(a)(2) of the Securities Act is to supplement Section 11 so as to impose liability on vendors of registered securities who are not liable under Section 11 and to impose liability with respect to representations made outside of the registration statement-prospectus. Section 18(a) deals with liability for false or misleading statements regarding a material fact contained in a registration statement as provided in Section 15(d) of the Securities Exchange Act.
The importance of Rule 10b-5 private actions was enhanced by the Supreme Court's decision in Gustafson limiting Section 12(a)(2) to misrepresentations made in the distribution of securities. As result, Rule 10b-5 is the only private remedy available for misrepresentations made in connection with private offerings.
A controlling person may be liable, jointly and severally, with the defendants liable under Sections 11, 12(a)(1), or 12(a)(2) of the Securities Act. Even though a controlling person is not a seller, Section 15 extends liability to persons who control any person liable under the above-mentioned liability provisions.
There are three kinds of safe harbor provisions for forward-looking statements: (1) Rules 175 and 3b-5 administrated enacted; (2) the judicially-established 'Bespeaks Caution Doctrine"; and (3) the Reform Act's safe harbor, which is a statutory approach.
Under Rule 175 and Rule 3b-6, if forward-looking statements were made in good faith and with a reasonable basis, they are not deemed fraudulent. The Bespeaks Caution Doctrine is a mechanism by which a court can rule as matter of law that if defendants' forward-looking representations contained enough cautionary language, those are not actional as securities fraud. The scope of the Bespeaks Caution Doctrine is much broader than that of Rule 175, because it applies to forward-looking statements that are either filed or not filed with the SEC and that are either oral or written. Finally, in order to obtain safe harbor under the Reform Act, a statement must meet one of three following conditions: (1) It is identified as a forward-looking statement and accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement; (2) It is immaterial; or (3) The plaintiff fails to prove that the forward-looking statement was made with actual knowledge that the statement was false or misleading.

목차 (Table of Contents)

• Ⅰ. 머리말
• Ⅱ. 미국 연방증권법상 부실공시에 대한 민사책임체계
• 1. 1차적 책임
• 2. 2차적 책임
• Ⅲ. 1차적 책임(Primary Liability)
• 1. 명시적 책임
• 2. 묵시적인 책임
• Ⅳ. 2차적 책임(Secondary Liability)
• Ⅴ. 예측정보에 대한 면책조항
• 1. 미국 증권법상 정보의 개념
• 2. 예측정보에 대한 면책조항
• Ⅵ. 맺음말