증권시장에서의 정보왜곡행위에 따른 손해의 내용

Korean courts have followed bifurcated approaches to how to define, identify and quantify the recoverable economic losses of investors who suffered injury due to misrepresentations or other fraudulent offenses in the stock market, as follows: (i) The first method takes the view that what constitutes recoverable damages is the excess price the plaintiff paid at the time of the purchase due to the price inflation caused by the fraudulent action. (ii) The second approach defines losses as referring to the extent by which the stock price plunges upon corrective disclosure of the truth. Does this seemingly incoherent state of law represent inconsistency in need of resolution by adopting one approach versus the other? This article analyzes the logical, normative and policy aspects as well as the relative strengths and weaknesses of these two methods and seeks to propose a perspective in favor of recognizing both as viable alternatives. Unlike the case in the U.S. where curbing frivolous securities class actions has emerged as a priority, this article argues that, under Korean law and circumstances, approach (ii) above should not be put forward as the sole and exclusive method by which plaintiffs must establish damages and loss causation. Rather, in many respects, approach (i) fits logically more consistently with the general rules of the tort law concerning the concept of ‘losses’ and, as such, should be recognized as the primary method of recognizing/measuring damages, whereas approach (ii) can, and may well, be employed as a supplementary method in cases where approach (i) is not optimal due to the particular fact pattern at bar or other evidentiary reasons.