言論自由還是詐欺？──國際信評機構不準確評等之研究

Freedom of Speech or Fraud? A Study of the Inaccurate Ratings of International Credit Rating Agencies

每在大型金融危機過後，信用評等機構都受到各界嚴厲撻伐，指責其從事嚴重之利益衝突行為，導致信用評等幾乎無法作為投資風險控管之參考，反而是為發行人服務，膨脹評等結果或降低評等標準，以取悅對其付費之客戶。許多投資者紛紛對於信評機構提起各種損害賠償訴訟。然而，信評機構堅持其所為之評等報告乃為一「意見」(statement of opinion)，主張其信用評等屬於美國憲法第一修正案所保護之「言論自由」範圍，原告必須要證明被告具有「真正惡意」(actualmalice)，始得請求損害賠償，而證明真正惡意之門檻相當之高，過去幾乎沒有信評機構敗訴之案例。然而，美國近年來實務或學說討論上，已漸轉趨認為，信用評等並非只是一個單純之預測意見；相反地，藉由其資訊與智識上之優勢，所作成之專業評估報告，信評機構應對信賴其資訊而做成投資決定之人負法律上責任。此一責任有可能是過失責任，亦有可能是證券詐欺之故意或未必故意責任。本文主張，應使信評機構負證券詐欺之故意或未必故意責任。金融市場瞬息萬變，金融商品之結構複雜度極高，因此若使信評機構負一般過失責任，則可能會造成信評產業之寒蟬效應，對於信評業之發展，亦不妥適。故以證券詐欺之故意或未必故意責任為宜。再者，我國關於證券詐欺之立法，乃參考美國反詐欺條款Rule 10b-5 精神而來，雖然我國目前幾乎不見對於信評機構提起損害賠償訴訟，但美國這類型訴訟越來越多，實值得我們注意。本文以目前美國法院之判決以及相關學說，對於信評機構之責任做一探討，以期將來作為我國訴訟與法院判決之借鏡參考。

Credit rating agencies are criticized extensively following every financial crisis in the past decades. Those criticisms often lead them to engage in activities that actually are conflicts of interest, and their ratings then become minimally functional for their investment risk control activities. However, these activities contradict credit rating agencies' desire to give confidence to the issuer, in which the agencies inflate credit rating results or possibly even downgrade their own rating standards, in order to please the issuers who pay them fees for providing credit ratings. Some investors have brought a diverse set of suits against the credit rating agencies, including fraud and negligence misrepresentation. However, credit rating agencies have insisted that the ratings are just a statement of opinions. Therefore, if anything were to go wrong, they have no scienter on providing inaccurate ratings, or they have no duty to the reader, and the investors actually have no reasonable reliance on their ratings. Moreover, they have asserted that their ratings are protected by the First Amendment for freedom of speech, and the plaintiffs must prove they have actual malice, which is extremely hard to prove, in order to bring a suit against the credit rating agencies. However, more recent discussions and court decisions have changed their opinions about the liability of credit rating agencies. They believe credit rating agencies are more like accountants or securities analysts who employ their expertise and are in an independent position to evaluate the possibility of issuer default. The ratings are not just predictions or opinions but professional evaluations which are performed by financial experts who have non-accessible information. As a result, they should be liable for the ratings they provide. In addition, the liability can be a negligent misrepresentation liability or the intentional or reckless securities fraud liability according to many discussions. In this article, we believe the intentional or reckless securities fraud liability is more proper, because the financial market changes all the time, and the financial products are quite complicated. If we ask the credit rating agencies to take negligent misrepresentation liability, it will have the chilling effect on the credit rating industry. The legislation on securities fraud in Taiwan is also considered on par with the Rule 10b-5. Therefore, we believe this article can be the reference and basis for our future litigations and court decisions for credit rating agencies’ responsibilities.