財務預測與證券詐欺之交錯與平行時空

Forward-Looking Statements and Securities Fraud

財務預測資訊（Forward-Looking Information），指公司的經營階層在考量過公司計畫以及經營環境後，針對未來的財務狀況、經營成果以及現金流量的結果所作的估計。財務預測若係依據當時可取得之資訊，作出合理的預測，本於財務預測未確定與變動性的特性，縱使日後財務預測方向失準，也不應發動民事、刑事責任對公司相繩。反之，公司發佈之財務預測，若非基於過去與現有資訊之合理基礎而得之推論，即屬誤導投資人之不實陳述，而該當證券詐欺之不法行為。本文將探究財務預測是否該當「重大性」；再者，發行人有無更新或更正財務預測之義務？關於上開謎團，學者間聚訟盈庭，法院見解更莫衷一是。也因此，本文將釐清財務預測於資本市場所扮演之角色，並辨明財務預測對於理性投資人之影響，加以梳理財務預測與證券詐欺規範之適用界限，希冀對於我國實務運作，得有具體判準以供參酌。 The purpose of full disclosure under the Securities and Exchange Act is to allow investors to gain complete information in the securities market, and to reduce price fluctuation caused by insufficient information; the goal is to solve the core issue of information asymmetry in information economics. Sometimes information reflects a prediction of future. This “forward-looking information” is at once the most valuable and the most perilous for securities markets. On the one hand, reliable predictions by management of a company's future are highly relevant to the public who value securities by calculating the present value of future cash flows. On the other hand, managers have great incentives to mold their predictions. Predictions are fraught with risk since they cannot be verified when made and almost always turn out wrong. Financial reports help investors to realize a company's past financial conditions, but it is more important to outline its future profitability by analyzing forward-looking statements for all investors. Forward-looking statements are one of the most useful investment information in the market, but because the financial forecast is “inherently uncertain,” many countries took a negative position on the disclosure of the forward-looking statements. The forward-looking statements are opinions rather than facts; therefore, they should be protected absolutely by constitutional laws. Above all, it is hard to think that the forward-looking statements have the materiality which can change investors' investment strategies significantly. The author believes that when forward-looking statements prepared by the company are not accurate as a result, the company shall not be liable for the statements. However, in case that the forward-looking statements manipulated by the issuer without any reasonable basis, then such statements should be viewed as misrepresentation. That issuer shall be liable for securities fraud. Hence, when the company has incurred material changes, the company does not have the duty to update the forward-looking statements because such statements does not meet the requirememnt of materiality which can change investors' investment strategies significantly.