불공정증권거래로 인한 손해배상책임에 있어서의 손해 인과관계 요건

In America, in order to recover damages in a Rule 10b-5 action, plaintiffs must establish loss causation, i.e., that the defendant’s misstatement or omission was the cause of economic losses to the plaintiffs. The requirement of establishing so-called “loss causation” has long been part of the common law, and was codified in the Private Securities Litigation Reform Act of 1995. However, the U.S. federal circuit courts were split on the issue of whether the allegation of artificially inflated purchase price alone is sufficient to establish loss causation before the U.S. Supreme Court’s landmark decision in 2005 on loss causation in Dura Pharmaceuticals, Inc. v. Broudo. The Supreme Court’s decision in Dura clarified what constitutes “loss causation.” There are two important aspects in the Supreme Court’s analysis of plaintiffs’ Rule 10b-5 action. First, according to the Supreme Court’s holding, although Dura Pharmaceuticals’ stock price was artificially inflated because of misrepresentation concerning the expectation of FDA approval of Dura’s product, that was not sufficient to establish loss causation. Second, the Supreme Court explained that the mere fact that Dura Pharmaceuticals’ shareholders who purchased Dura Pharmaceuticals’ stock after Dura Pharmaceuticals had made the purportedly false statement to the market, and therefore arguably paid an inflated price, suffered a decline in the value of their stock between the time of purchase and the time of sale was likewise not sufficient enough to establish loss causation. The reason the Supreme Court made that conclusion was that shareholders’ economic losses could be caused by any kind of factors besides disclosure of the fraudulent statement, such as changing economic situations. In short, the Supreme Court in Dura emphasized that the plaintiff must establish that the defendant’s misstatement or omission caused economic losses to shareholders who purchased shares at an inflated price. This article suggests that (1) Korean courts also adopt the so-called “loss causation” theory as described by the U.S. Supreme Court’s decision in Dura ; and (2) the “out-of-pocket” measure of damages, which is the difference between the price paid or received and the true value at the time of purchase, is utilized as measure of damages for a unfair securities transactions claim. The out-of-pocket damages are the most common form of damages for Rule 10b-5 violations in the U.S. It is the proper measure of damages because it complies with the loss causation requirement, and limits plaintiffs to their actual damages.