증권관련집단소송법상의 분식회계 책임

Abstract

Class action is the action that is brought by one or more plaintiffs together with the counsel without explicit consents from other absent plaintiffs, even though those absent plaintiffs are bound by the judgement. Securities class action bills proposed so far in Korea include false statement, window dressing accounting, insider trading, and stock price manipulation as targets. The class action systems that those bills contain differ from the current multi-party litigation systems such as Consolidation and Representative Litigation in the following aspects; while the victims of the fraudulent behavior have to express their intention for participation in the current system, they do not have to do so in the new system; more active judicial control over the litigation process, such as the replacement of the lead plaintiff and the judicial initiative in making the distribution plan of the damages or settlement awards is required in the new system. In the absence of securities class action, only a few actions are brought before the civil court against the securities fraud. What was effective in deterring the securities fraud were the administrative penalty by the Financial Supervisory Board(FSB) and the ensuing criminal penalty. Even though the civil action piggybacks on the case detected by the FSB, it may help deter the securities fraud by intensifying the disadvantage borne by the injurer. Unfortunately, however, diffused nature of the losses prevents victims from bringing civil action. The introduction of the American style securities class action may help to alleviate the problem. Litigiousness, however, is not good in itself. Unless the amount of damages is proportional to the social cost generated by the securities fraud in question, the civil action system is in fact turned into that of an compulsory insurance. The current proposals contains such danger.