증권규제에서 Materiality에 대한 小考 = A Study on Materiality in Securities Regulation

다국어 초록 (Multilingual Abstract)

  The regulation of disclosure, unfair trading like insider trading and manipulation, and accounting in securities laws need the target information to be material. The decision on the materiality of information or representations, however, is very difficult. Accordingly, the materiality test is called “the name of the game” to the securities lawyers.<BR>  The United States judicature has developed case laws on the materiality test. First, the “Substantial likelihood test” has been applied to the historic information accounting for most information. The point of this test is that “a fact is material if “there is a substantial likelihood a reasonable investor would consider it important” in making a securities-related decision” or “there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available”.<BR>  Second is the “Probability and magnitude test” for speculative information such as merger & acquisition, bankruptcy, or oil exploration. The meaning of the test is that when a piece of information has unusual magnitude, then the information may be material in earlier stage even though the probability of actual occurrence of the information is very low. The last test is the “Substantial certainty test” for soft information like earnings projections or performance forecasts. This standard excludes puffery from material information when some kinds of soft information lack substantial certainty.<BR>  The first and second test are established by the Supreme court, while the “substantial certainty test” has been forming to the final case law by some federal appeal courts, especially the Six circuit.<BR>  The securities regulation in Korea seems to be poor at theories and practices on the materiality test. Although the Korean courts in securities cases have adopted almost the same standards as the US test, they have not been applied with precision. Above all, there is no distinction among the types of information. The materiality tests also do not show distinctive features each other, so the tests applied in cases sometimes have not been matched with the corresponding information. Therefore, we need to get some meaningful guides from the history of materiality theory in the US.

목차 (Table of Contents)

• Ⅰ. 머리말
  Ⅱ. 미국에서의 materiality 이론 전개
  Ⅲ. 주요 판례에의 적용 및 비교 분석
  Ⅳ. 맺음말
  【참고문헌】
  [Abstract]
  

참고문헌 (Reference)

1 "회계기준서 1호 적용시 중요성 판단의 문제점" 13 (13): 2004.9

2 "현대증권법원론" 박영사 2002

3 "증권집단소송법상 입증책임과 시장사기이론 주식" 한국증권거래소 2003.11

4 "증권거래법상 ＂미공개정보＂가 ＂공개정보＂가 되는 시점과 미공개정보이용금지의 규정 취지에 따른 처벌의 범위, 상장" 상장회사협의회 2006

5 "증권거래법 개정2판" 박영사 2004

6 "미국증권관계법" 박영사 2001

7 "미국 판례법상 시장사기이론(The fraud-on-the-market theory)과 증권거래법상 損害賠償責任에 있어서 因果關係의 문제" 한국비교사법학회 11 (11): 2004

8 "대법원 2003.6.24. 선고 2003도1456 판결" 2000

9 "대법원 2000.11.24. 선고, 2000도2827 판결" 2000

10 "대법원 1995.6.30. 선고, 94도2792 판결" 1995

11 "내부자거래 규제에 있어서 미공개 중요정보의 성립시기에 관한 고찰 주식" 한국증권거래소 1999.11

12 "내부자거래 규제에 관한 비교법적 연구" 2003

13 "內部者去來規制對象으로서의 內部情報에 관한 硏究" 1993

14 "What’s All the Commotion?: An Examination of the Securities and Exchange Commission’s Regulation FD" 14 : 119-, 2001

15 "The Best Puffery Article Ever" 91 : 1395-, 2006

16 "Staff Accounting Bulletin" 1999

17 "Selective Disclosure and Insider Trading" 2000

18 "Securities and Exchange Commission, A Special Study: Regulation Fair Disclosure Revisited" 127-, 2001

19 "Securities Regulation: Examples & Explanations" Aspen Law & Business 1998

20 "Securities Regulation: Cases and Materials Third Edition" Aspen Law & Business 2001

21 "Securities Regulation: Cases and Materials Eight Edition" Foundation Press 1998

22 "Regulation FD and Foreign Issuers: Globalization’s Strains and Opportunities" 41 : 653-, 2001

23 "Materiality Guidance in the Context of Insider Trading: A Call for Action" 52 : 1131-, 2003

24 "Markets as Monitors A Proposal to Replace Class Actions with Exchanges as Securities Fraud Enforcers" 85 : 925-, 1999

25 "Costs and Benefits of Regulation FD" 2001

26 "Committee of Federal Regulation of Securities Report on Regulation FD, ALI-ABA Course of Study" 319-, 2002

27 "3 Bromberg & Lowenfels on Securities Fraud" 2007