論財報不實民事求償訴訟之交易因果關係

按證券交易法（以下簡稱「證交法」）第1條揭示「發展國民經濟」與「保障投資」之目的，係以資訊強制揭露與制定反詐欺條款等方法實現。藉由強制發行人將財務業務資訊對外揭露，證券投資人於買進或賣出決定前即可獲取充分資訊，以降低交易時不對稱之交易成本。而此時，反詐欺條款可確保揭露資訊之品質，對於重大隱匿或虛偽的資訊，法律均予以禁止與懲罰。證交法第20條第2項即特別規定「發行人依本法規定申報或公告之財務報告及財務業務文件，其內容不得有虛偽或隱匿之情事。」

According to Section 20-1 of Taiwan Securities and Exchange Act (this Section), in a case involving financial misrepresentation, the tortfeasors shall be liable for any resulting damages suffered by investors who rely on such false financial statement. In a civil case, the plaintiffs (investors) shall prove that a transaction causation exists between the alleged misrepresentation of the defendants and decisionmaking of the plaintiffs. However, that requirement of burden of proof is very difficult to be satisfied as a matter of fact, especially incases involving transactions in an open securities market. In order to alleviate the burden of the plaintiffs, some Taiwan’s courts introduce the fraud-on-the-market theory to presume the existence of transaction causation. However, courts’ opinions diverge in this regard and whether to presume the existence of transaction causation in a given case depends and may be inconsistent. This Section also allows securities holders can bring an action, but how can they can prove the transaction causation will be an another issue. This article argues that the transaction causation may be presumed based on Section 277 of Taiwan Code of Civil Procedure due to the similar reasons supporting the fraud-on-the-market theory. However, a future legislation to officially introduce the theory is highly suggested and thus can prevent courts from having divergent opinions. In the meantime, the current provision that authorizes securities holders to sue shall be deleted because they do not transact any deals and simply holding the securities would not justifiably to presume their reliance on the misrepresentation by the defendants.