財報不實民事責任的分擔與承擔

Abstract

在投保中心成立後，我國實務逐漸著手處理財報不實事件的相關爭議。透過近20年來的努力，在民事損害賠償仍留下些許未竟之功。首先，在請求權規範競合底下，法院對財報不實事件的責任主體以及各主體責任成立的論述十分模糊。有鑑於此，本文主張以證券交易法（下稱證交法）第20條、第20條之1建構我國財報不實責任主體。除了劃定責任主體的範圍及釐清各主體構成要件的判斷，並將財報不實事件的原理原則封鎖在證交法中。 其次，財報不實中各主體的責任分擔計算，在比例責任制引入我國以後有顯著的影響。通說認為財報不實事件的連帶債務關係是由數個真正、不真正連帶債務所構成。如此一來，當實務遇有一人清償、和解時，責任分擔免除適用卻模糊不清。因此，本文建議將比例責任制視為投資人對過失行為人的請求額限制，所有行為人的責任仍為一個真正連帶債務，以此作為清償、和解的計算前提。此外，財報不實事件中一人和解時，過去法院會扣除解金額後，再就剩餘行為人進行比例責任分配，然此一方法恐使未和解行為人分擔過重責任。本文認為應修法將和解金額效力明定生絕對效力，並於和解金額小於內部分擔額時，就兩者間的差額亦生絕對效力，以釐清和解於連帶債務中的效用。 最後，就各行為人責任承擔方面，本文建議發行公司對負責人、他行為人積極行使求償權，而投保中心可以適時地提起代表訴訟，替發行公司求償。當投保中心與發行人和解時，應該要求發行人提出對其他行為人的求償的求償計畫，並限制和解契約的當事人、參與人不得對外聲稱自己無任何違法情事。若該等人惡性重大，或投保中心掌握較高證據，而有公共問責的必要性，投保中心應要求該等行為人承認自己的違法行為，以達責任承擔之目的。

After the establishment of the Securities and Futures Investors Protection Center (“SFIPC”), lawsuits regarding financial statement misrepresentations are gradually being addressed by Taiwanese jurisprudence as well. Through 20 years of effort, there are still some unfinished work with respect to the civil damages in financial statement misrepresentation lawsuits in Taiwanese judicial practices. First, the courts fail to elaborate on the subjects of responsibility in financial statement misrepresentations and the establishment of responsibility in such cases when concurrent claims against those subjects exist. This Thesis therefore suggests constructing the subjects of responsibility under Article 20 and 20-1 of Taiwanese Securities and Exchange Act (“SEA”). In this way, not only does this Thesis define the scope of the subjects of responsibility and clarify the determination of each requirement, but it also locks up the principles of financial statement misrepresentations in the SEA. Second, through observing Taiwanese jurisprudence, this Thesis proceeds to point out that the introduction of proportionate liability has a significant impact on the calculation of responsibility in each subject in financial statement misrepresentations. The prevailing literature considers the liability in financial statement misrepresentations consist of multiple joint and several liabilities and quasi-joint and several liabilities. However, in practice, the application of the exemption in this kind of liability is unclear when an actor performs or settles his/her own debt. This Thesis hence suggests that, as the premise of the calculation of the performance and settlement, the proportionate liability be considered a restriction on the investors’ claims against the negligent actors, and that the responsibility of all actors still be viewed as one single joint and several liability. In addition, when a joint and several debtor settles his/her own debt in financial statement misrepresentations, the courts would, in the past, deduct the amount of such settlement and then allocate the proportionate liability within the remaining debtors; this method, however, might impose excessive liabilities on debtor not doing so. This Thesis asserts that the SEA be revised to clearly state that the amount of settlement has absolute effectiveness and that when the amount of settlement is lower than proportionate liability of debtor who settles with creditor, the difference between those two amounts should have absolute effectiveness as well in order to clarify the functions of settlements in joint and several liability and to be applied to financial statement misrepresentations. Eventually, this Thesis suggests that, with regard to the taking of responsibility of each actor, the issuers actively seek remedies against the responsible persons and other actors, while the SFIPC could institute derivative actions or other legal actions for the issuer. Furthermore, when settling with the issuers, this Thesis contends that the SFIPC should ask the issuers to submit a performance plan regarding how the issuers will seek damages from other actors, and request that the parties and the participants of the settlement not publicly declare that they are innocent; this Thesis also suggests that the SFIPC should ask the actors to admit their own unlawful behaviors based on the evidence it has, the extent of the actors’ malice, and whether there is obvious necessity for public accountability. In this way, we can let actors undertake their responsibility. Keywords: Financial statement misrepresentation, Subject of responsibility, Proportionate liability, Settlement, Contribution, Derivative action, Contribution plan.