한국 증권관련집단소송법 적용범위의 적절성에 관한 연구：입법과정검토 및 실증분석

The purpose of this paper lies in preliminarily inquiring whether the legal jurisdiction was adequately defined for the Securities-Related Class Action Law (SRCAL) introduced in Korea from 2005. Specifically, we investigate why, in SRCAL, the availability of class action suits has been confined only to five out of the eighteen damages clauses stipulated in the Korean Securities Exchange Law. For this goal, we first sought any plausible answer through collecting and examining a number of documents (for instance, several versions of the original legislative bills) associated with its entire legislative procedure, broadly speaking, over 15 years. Nevertheless, we are afraid that we were not able to find fairly solid traces on any concrete legislative rationales, not to mention the absence of some empirically testable hypotheses that one can infer. In particular, the majority of the legislators appear to have made their suggestions or arguments hardly based on logical or empirical evidence. Class action is the type of suits most appropriate for harmful activities which cause a trivial level of harm, however, to a great number of victims. The validity of this proposition itself is obvious, or perhaps so obvious that, in retrospect, legislators and policy makers might have taken it for granted too early and too easily without actually using it as the major criterion through their legislative scrutiny. Having found only limited (but again hardly solid by any meaningful standard) evidence on its legislative rationales, we next turned to an empirical analysis utilizing actual court cases data. We were able to benefit greatly from the newly-built court cases database by the Korea Supreme Court. The biggest advantage of this database is that one can now collect almost the whole population of court cases judged at lower courts, which was virtually impossible to obtain even a couple of years ago; the Korean judiciary had traditionally been willing to make publicly available only the Supreme Court cases. However, the judgments at the Supreme Court usually do not contain details of the cases, in turn producing too many missing values in undertaking empirical analyses. The sample period was five and a half years up to September of 2007. Out of the 883 cases we collected, which were related with securities transactions in one way or another, we finalized our dataset consisting 185 cases precisely satisfying our analytic objective：Firstly, those 185 cases were concerned with violation of the regulations explicitly stipulated in the Korean Securities Exchange Law. (In fact, according to our own classification, there exist 112 regulations in the Law, and 18 damages clauses as discussed above.) Secondly, plaintiffs were seeking monetary damages from the defendants who violated those regulatory clauses. This final dataset appeared to provide at least a lucrative research opportunity, if not a most ideal testing method, as elaborated below. It turns out that, in the sample, 28 regulations were violated 446 times. To be sure, these 28 regulations are legally inter-related to damages clauses in the Law. We next calculated, for each regulation violated, two major statistics, i.e., the average number of the plaintiffs, and the average damages awarded per plaintiff. Again, the fundamental (normative) principle underlying our empirical analysis was that class action suits should be applied cautiously to the set of activities in the securities market which tend to impose ‘small harm’ upon ‘widely-distributed victims.’ We thus used the aforementioned average number of the plaintiffs as the proxy of the latter criterion, and the average damages awarded per plaintiff as the proxy of the former. Based on this rather laconic empirical methodology, we found that the current jurisdiction of SRCAL over the five damages clauses empirically seems to had been adequately defined to an extent. Further, more intriguingly, the data manifested itself that class action would in all likelihood be appropriate for several of the damages clauses particularly related to ‘public disclosure’ regulations (and thus their corresponding damages clauses). We believe that this finding is completely consistent with the popular assertion, representatively established in the recent work by La Porta, Lopez-de-Silanes, and Andrei Shleifer (2006), that the so-called ‘liability rule’ is superior in deterring harmful activities associated with improper disclosure in the securities market. Heated debates are currently under way in Korea, concerning whether to extend the use of class action suits to other areas such as consumers protection, labor disputes, environmental risks, or even to government services. Nonetheless, attempts to provide positive evidence either by pros or by cons have been almost nil. Hence, we hope that our empirical method presented in this paper, if of very preliminary nature, will be useful for future discussions on efficiently assigning the jurisdiction of class action presumably in other substantive areas of law as well in Korea. To be sure, creative efforts by researchers will be inevitable for a designing of more rigorous method for such tasks.