증권규제에서 Materiality에 대한 小考

• 영문명: A Study on Materiality in Securities Regulation
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 성희활(Hye-Hwal Seong)
• 간행물 정보: 『비교사법』比較私法 제14권 제3호(하), 919~955쪽, 전체 37쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.09.30

영문 초록

  The regulation of disclosure, unfair trading like insider trading and manipulation, and accounting in securities laws need the target information to be material. The decision on the materiality of information or representations, however, is very difficult. Accordingly, the materiality test is called “the name of the game” to the securities lawyers.
  The United States judicature has developed case laws on the materiality test. First, the “Substantial likelihood test” has been applied to the historic information accounting for most information. The point of this test is that “a fact is material if “there is a substantial likelihood a reasonable investor would consider it important” in making a securities-related decision” or “there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available”.
  Second is the “Probability and magnitude test” for speculative information such as merger & acquisition, bankruptcy, or oil exploration. The meaning of the test is that when a piece of information has unusual magnitude, then the information may be material in earlier stage even though the probability of actual occurrence of the information is very low. The last test is the “Substantial certainty test” for soft information like earnings projections or performance forecasts. This standard excludes puffery from material information when some kinds of soft information lack substantial certainty.
  The first and second test are established by the Supreme court, while the “substantial certainty test” has been forming to the final case law by some federal appeal courts, especially the Six circuit.
  The securities regulation in Korea seems to be poor at theories and practices on the materiality test. Although the Korean courts in securities cases have adopted almost the same standards as the US test, they have not been applied with precision. Above all, there is no distinction among the types of information. The materiality tests also do not show distinctive features each other, so the tests applied in cases sometimes have not been matched with the corresponding information. Therefore, we need to get some meaningful guides from the history of materiality theory in the US.

목차

Ⅰ. 머리말
Ⅱ. 미국에서의 materiality 이론 전개
Ⅲ. 주요 판례에의 적용 및 비교 분석
Ⅳ. 맺음말
【참고문헌】
[Abstract]

키워드

Materiality 중요성 상당한 개연성 기준 개연성/중대성 기준 상당한 확실성 기준 내부정보 Substantial Likelihood Test Probability and Magnitude Test Substantial Certainty Test Total Mix of Information