資本市場法 제125조의 「증권의 취득자」의 범위

The Financial Investment Services and Capital Markets Act (hereafter “FISCMA”) demands the issuer of publicly offered securities to submit a registration statement and use a prospectus in order to provide investors with the information necessary for estimation of the publicly offered securities. To protect investors from misrepresentation of relevant information, Section 125 of the FISCMA also provides that persons who are involved in providing false representation of any material fact in a registration statement or an investment prospectus, or omission of a material fact therefrom shall be liable for damages inflicted on any acquirer of securities as a result of the false information. The scope of plaintiffs that can demand a remedy based on the damage caused by false information in registration statement or prospectus depends on how “acquirer of securities” is interpreted. This issue has been debated since the late 1990s when the old securities law was applied. The point of dispute has been whether the acquirer of securities denotes only the investors who purchased as part of the original public offering or includes the secondary investors who purchased in the aftermarket. The latter argument is generally called the “including theory” and the former argument is called the “excluding theory.” In this article, the theoretical basis of these two theories are analyzed. In addition, the author surveys the rules of several foreign countries identical to Section 125 of the FISCMA and the interpretation theories thereof to confirm the global trend of this issue. In conclusion, the author demonstrates the reasonableness of the “including theory” by discussing the species sale nature of the securities transaction in the modern market.