| 摘要: | 投資者之所以願意投資一家公司，大多是由於看好公司未來的發展與前景。當公司提供樂觀的前瞻性資訊時，會吸引大批投資者購買，股價旋即快速上漲。惟若公司預測與嗣後事實不相符，由於不如預期在證券市場中被視為一大利空，通常造成股價重挫，受損投資者因而主張公司先前的前瞻性陳述構成證券欺詐。早期法院認為賣方的銷售談話僅構成意見，非陳述事實，因而不具可訴訟性。惟SEC認為，若公司提供的意見或預測等前瞻性資訊具有重大性，且非出於善意或不具合理基礎者，亦可能違反「反詐欺條款」。至於分析師或投資顧問所為單純個人的意見或預測，縱使嗣後證明為不正確，或與事實發展不符合者，原則上應不足以構成流言或不實資料。惟若預測係植基於無法信服之事實，或在刻意隱瞞下作出預測，則亦可能具可訴訟性。由於前瞻性資訊具有推測性質，在判斷行為人是否藉由發布前瞻性資訊進行詐欺與操縱時，若僅以前瞻性資訊與嗣後事實不符為由而認定為不實資訊，將落入後見之明。對此，應從前瞻性資訊之重大性出發，若具有重大性，再進一步判斷因果關係與行為人是否有主觀構成要件。反詐欺條款係以「重大性」為要件，觀諸美國實務案件，在前瞻性資訊中，除了合併初期案件採Probability / Magnitude Test之外，其餘前瞻性資訊之重大性仍係以TSC一案的Substantial Likelihood Test為基礎，亦即若理性投資者在決策時「實質可能」考慮該前瞻性資訊，且該前瞻性資訊「實質可能」改變總合資訊者，該前瞻性資訊即具重大性。美國證券市場以機構投資者為主，較富有投資經驗，在SEC鼓勵公司提供前瞻性資訊之後，由於投資者濫行訴訟，法院遂以不具重大性為由駁回。惟我國證券市場以個人投資者為主，相對於機構投資者而言較不具有專業知識，易受到資訊影響。為避免有心人士利用此特色，發布不實資訊操縱證券價格，從中賺取不法利益，因此，本文嘗試就美國前瞻性資訊之發展，綜合事件狀態、陳述主體、陳述場合等面向加以判斷前瞻性資訊的重大性，並試圖劃分出更為精細的責任界線。Most of the investors willing to invest a company are because they have faith in the company’s further development and future prospect. When a company provides optimistic forward-looking information, it will attract the purchase of a large amount of investors, causing a rapid increase in the stock price. However, if the prediction of the company does not match the subsequent fact, it usually causes the securities prices plunged, and the damaged investors therefore file that the former forward-looking statement of the company constitutes securities fraud.The early court considered that the sales conversation of the seller constructed only an opinion but not a statement of facts, as so was non-actionable. But the SEC considers that if the forward-looking information such as opinions or forecasts providing by the company have the materiality, and the statement is not out of the good faith or is not having a reasonable foundation, it is likely to violate anti-fraud provisions. As for the actions took by analysts or investment adviser, they are purely personal opinions or forecasts, so even though they might be confirmed subsequently non-accurate or not correspond to the development of facts, they should not be able to constitute a rumor or false information; but if the prediction is based on inconvincible facts or making predictions in case of deliberately concealing certain facts, it is likely to be actionable. Since forward-looking information has the nature of speculation, it’ll fall into the hindsight if regarding the forward-looking information as false information merely due to its inconsistency to the subsequently facts while judging whether the perpetrator conducts fraud and manipulations by distributing it. Therefore, it should start from the materiality of the forward-looking information, and then determine causal relationship and the subjective components if it has the materiality.Materiality is the key element of anti-fraud provisions. Through the practical cases in the U.S, forward-looking information except the initial merger case using Probability / Magnitude Test, materiality of the rest forward-looking information is based on the Substantial Likelihood Test , that is if there is a substantial likelihood that a rational investor would consider the forward-looking information while making the decision, and there is a substantial likelihood that the forward-looking information would alter the total mix information, the forward-looking information is to be consider having materiality. The U.S. securities market is dominated by institutional investors, who have more investment experiences. Because investors conducted litigations indiscriminately under the encouragement of SEC toward companies to provide forward-looking information, the court then rejects the litigations in the name of not having materiality. However, the securities market of our country is dominated by personal investors, who don’t have enough professional knowledge comparing to institutional investors, and are easily affected by outer information. In order to avoid interested parties taking advantage of this characteristic, earning illegal profits from distributing false information to manipulate security prices, this article attempts to discuss from aspects such as development of forward-looking information in the U.S, integrated event status, subject of statements, and occasion of statement to determine the materiality of forward-looking information, and tries to divide more refined lines of responsibility. |
