| 摘要: | 證券市場係企業最主要之籌資管道，同時亦係人們投資之最佳途徑。因此，建構一健全之證券市場非常重要，其攸關整體經濟發展至鉅。
為健全證券交易市場，我國證券交易法第20條規定：「有價證券之募集、發行、私募或買賣，不得有虛偽、詐欺或其他足致他人誤信之行為。發行人依本法規定申報或公告之財務報告及財務業務文件，其內容不得有虛偽或隱匿之情事。違反第一項規定者，對於該有價證券之善意取得人或出賣人因而所受之損害，應負賠償責任。委託證券經紀商以行紀名義買入或賣出之人，視為前項之取得人或出賣人。」為我國一般證券詐欺條款。基此，一遭受證券詐欺之原告必須具體證明其所受損害與被告之詐偽行為間，具有信賴要件及因果關係之存在，始得獲得賠償。事實上，如此舉證責任對於原告而言非常困難，導致證券交易法第20條無從有效達成規範目的。
為解決此疑義，我國學說及實務採用美國法「詐欺市場理論」(fraud-on-the market theory)用以推定原告之信賴事實，惟我國部分實務就此理論之適用，除用以推定原告之信賴要件外，有逕以推定原告因受被告詐欺而交易有價證券所受之損失，進而免除原告就其所受具體損失所應負之舉證責任。此等見解除忽略有價證券交易市場中存在對於交易價格之各項影響因素外，逕為免除原告就損失因果關係之舉證責任，顯不符於「損害填補原則」(principle of indemnity)。
我國證券交易法制乃繼受自美國相關法制，然美國法就證券詐欺之構成要件，及因果關係與損害賠償方式所涉之學說與司法實務見解，是否均適於我國證券交易法第20條第1項一般證券詐欺要件之認定？再就美國證券團體訴訟之法制及發展現況，是否有值得我國借鏡之處？
本論文藉由對於美國立法及司法實務就證券詐欺之概念加以介紹，並分析證券詐欺之主客觀要件、因果關係、損害賠償計算方式及證券團體訴訟等各部分內容後，進而評析相關判決內容，最後提出結論及建議。
A securities market is the primary fund-raising channel to an enterprise and the best investment channel for the general public. It is very important to have a sound securities market constructed since it is highly related to the overall economic development.
For the establishment of a profound securities market, Article 20 of the Securities and Exchange Act stipulates as follows: “During the public offering, issuing, private placement, or trading of securities, there shall be no misrepresentations, frauds, or any other acts which are sufficient to mislead other persons〔Paragraph 1〕.The financial reports or any other relevant financial or business documents filed or publicly disclosed by an issuer in accordance with this Act shall contain no misrepresentations or nondisclosures〔Paragraph 2〕. Anyone who violates the provisions of paragraph 1 shall be held liable for damages sustained by bona fide purchasers or sellers of the said securities〔Paragraph 3〕. The principal who commissions a securities broker to purchase or sell securities as a commission agent shall be deemed as a ‘purchaser’ or ‘seller’ for the purpose of the preceding paragraph〔Paragraph 4〕”. This is the general securities fraud clause of Taiwan. Therefore, the plaintiff of a securities fraud lawsuit must provide substantial evidence for the existence of reliance elements and causation between the damage incurred to the plaintiff and the fraud committed by the defendant in order to receive compensation. In fact, the burden of proof on the plaintiff is very difficult to fulfill. Consequently, the legislative purpose of Article 20 of the Securities and Exchange Act has not been to achieved effectively.
To resolve such doubts, the “Fraud-on-the-Market Theory” of American laws and regulations has been adopted in Taiwan, to presume the reliance fact of the plaintiff. However, for the applicability of this theory in some of the practices in Taiwan, in addition to presuming the reliance elements of the plaintiff, it is presumed discretionally that the plaintiff has suffered securities trading losses due to the fraud committed by the defendant. Therefore, the plaintiff is excused from the burden of proof in evidencing the specific losses. Such point of view neglects the various influential elements on the trade price in the securities market. Moreover, having the plaintiff exempted from the burden of proof in evidencing causation discretionally is not in conformity with the “Principle of Indemnity.”
Taiwan Securities and Exchange Act is affected by the relevant laws of the United States. The question then is whether the constituent elements of securities fraud are according to the laws of the United States, causation, and indemnity related theories and judicial practice insights suitable to the definition of the general securities fraud elements as per Article 20, Paragraph 1 of the Securities and Exchange Act? Furthermore, is there anything we can learn from the law and development regarding securities class action in the United States?
In this paper the concept of securities fraud is introduced through the legislation and juridical practice of the United States. Besides subjective and objective elements, the causation, the calculation of indemnity, and securities class action are further analyzed. The contents of relevant court decisions are then evaluated. At last, conclusions and recommendations are proposed. |
