미국증권대표당사자소송에서의 인과관계에 관한 최근 논의가 우리 법의 운용에 끼칠 수 있는 영향에대한 일고

Abstract

The South Korean legislature passed a bill establishing a private securities class action system on January 20, 2004. The law has been in force since January 01, 2005.According to a recent Korean newspaper article, there has been not one Korean securities class action case filed since 2005. There are many reasons why no case has been filed up to now: Prerequisites like, at least 0.01% in aggregate of the issued and outstanding shares of the subject company, for 50 or more members is, too heavy a financial burden plus high risk for a plaintiff lawyer, and no discovery rules like American laws, etc.But the most important factors might be the difference of economical and judicial infrastructure between America and Korea. Nearly all of the factors are different: the size of security market, the judges, courts, lawyers, legal and educational backgrounds and the shareholders attitude. If these differences are ignored, any analysis will be flawed. So, I reviewed the pros and cons about loss and transaction causation as elements in the Fraud-On-The-Market Theory of American scholars. I also reviewed the American Federal Court's interpretations on loss and transaction causation. In conclusion, this other complicated set of pros and cons of loss and transaction causation theory in America doesn't need to introduced or should not be interpreted as a theory of Korean Securities Class Action. This American law theory can be used in “ceteris paribus” (it means that other things being equal in Latin) conditions only. A more careful consideration will be necessary for a lawyer to initiate a Korean Class Action suit in Korea.