자본시장법상 중요사항 판단기준의 분석 - 대법원 2015.12.23. 선고 2013다88447 판결을 중심으로 -

The Korean Financial Investment Services and Capital Markets Act (hereinafter, Capital Markets Law) imposes duty to disclose on securities issued in the capital market. If the securities acquirer has suffered damages due to a false statement or omission of facts in registration statement and the prospectus that are material to reasonable investors' judgment, persons involved in writing the statement are liable for damages. However, in determining whether there is a violation of the Capital Markets Law regarding registration statement, it is often ambiguous to know what is material. The Korean Supreme Court’s decision on Dec. 23, 2015 (ruling no. 2013DA88447) addressed whether involved underwriters would be liable for false statements or omission of material facts claimed by plaintiffs. The Supreme Court in this case newly proposed a so-called total mix of information test for supporting decision of what are material facts. This test depends on whether there would be a significant change in the overall context of information available to potential investors with the specific omitted information. However, human investors usually don’t have the abilities to analyze all the information written in registration statements due to their bounded rationality and transaction costs; these characteristics of investors should be taken into consideration. In this respect, it is necessary to refer to the related U.S. cases and to apply legal doctrines such as duty to disclose certain forecast information, to apply ‘Bespeaks Caution’ doctrine thereby forcing cautionary languages to be written specifically and prominently.