증권집단소송에서 부실표시의 중요성의 소송허가요건해당성에 관한 한국과 미국 법제의 비교연구 ― 대법원 2016.11.4. 선고 2015마4027 결정을 중심으로 ―

It is a controversial case about whether the substantive content of a claim for damages should be heard at the stage of making a decision to permit a class action. According to the view that the class action should be granted only when the importance of misrepresentation is recognized, it is necessary for the defendant to examine the case of the preliminary hearing at the permission stage because the class action suffers a lot of losses from the disadvantage. In particular, a small number of US Supreme Court's view that trust is estimated by market fraud theory in securities fraud lawsuits, If the estimate is broken, it should not be a decision to grant a lawsuit permission. In addition, SECURITIES-RELATED CLASS ACTION ACT provides for the separation of the litigation permission procedure and the trial of the main litigation, and in the litigation permitting stage, a legal claim or a de facto important issue is applied to all the members as a claim for damages under Article 3 (1). The Supreme Court has the opinion that the importance of misrepresentation is not a litigation permission requirement, since it is sufficient to prove that it is common, and that the importance of misrepresentation is examined at the substantive stage of the case. Korea Supreme Court adopted the view of the majority opinion of the US Supreme Court. In the efficient securities market which is disclosed by accepting the market fraud theory, defendant's misrepresentation or omission is reflected in the stock price, It is assumed that the buyer bought the stock that the price is fair price, because the buyer relied on the misrepresentation or omission. However, at the stage of granting a securities class action, it is not necessary to prove the importance of the misstatement, but it is sufficient to prove the commonality of legal or real issues. Considering that it is not easy to approve a lawsuit in securities class action, it is reasonable for the Supreme Court to consider that the importance of misrepresentation should not be examined during the permission process.