證券虛假陳述比例連帶責任的認定標準釋論

Interpretation of Standards for Recognizing Proportional Joint and several Liability for Securities Misrepresentation

在證券虛假陳述糾紛案件中，為緩和連帶責任的嚴格性而新近出現的比例連帶責任，與環境侵權、網路侵權等數人侵權類型中所構建出的「部分連帶責任」在產生基礎上並不一致，不應類推適用「半疊加因果關係」的分別侵權行為理論。在「過錯與責任相一致」的政策權衡下，比例連帶責任的連帶屬性設計使其區別於比例責任，在責任效果上既能避免過失虛假陳述行為人對全部的損害承擔賠償責任，又能更好地分配受害人求償不能之風險。證券交易活動依賴於數個主體諸多環節協議完成，承擔比例連帶責任的責任主體，其行為或伴隨整個證券發行過程，或環環相連密不可分，或相互參照，以原因力大小來認定外部責任比例實屬困難。因此，在外部關係上應考量過失虛假陳述行為人的過錯程度來確定按多大比例對外承擔連帶責任，強調過錯與義務範圍在確定外部比例上的重要性與可行性。而在內部關係上，須將所有負有責任之人納入整體考量，嘗試區分責任群體，進而劃定具體各個責任人的內部比例。

In the cases of securities misrepresentation Infringement, in order to mitigate the stringency of joint and several liability, the newly emerged proportional joint and several liability is inconsistent with the “partial joint and several liability” constructed the type of infringement by several persons in the context of environmental infringement, cyber infringement, and other types of infringement by a number of persons, thus, the doctrine of “semi-superimposed causation” in separate torts should not be applied by analogy. Under the policy of “consistency between fault and liability”, the joint and several liability design in proportional joint and several liability makes it different from proportional liability, in terms of liability effect, it can not only avoid the perpetrator of negligent misrepresentation to bear the liability for all the damages, but also can better distribute the risk that the infringed will not be fully compensated.
Securities trading activities rely on the completion of several subjects in various aspects of the agreement, and the infringements of the responsible parties who bear proportional joint and several liabilities may accompany the entire process of securities issuance, or ring inextricably linked, or by reference to each other, it is difficult to identify the proportion of external responsibility in terms of the size of the causal force. Therefore, in the external relation, the degree of fault of the perpetrator of negligent misrepresentation should be considered to determine what percentage of joint and several liability the perpetrator should bear externally, this emphasizes the importance and feasibility of fault and scope of obligation in determining external proportion. As for the internal relationship, all responsible persons must be taken into consideration as a whole, trying to distinguish different responsible groups, and then delineating the internal proportion of each specific responsible person.