The Civil Liability of Secondary Actors for Securities Fraud

• Main Authors: Lin, Shih-Ping, 林詩玶
• Other Authors: Chang, Hsin-Ti
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/98218935084454230417

碩士 === 國立臺北大學 === 法律學系一般生組 === 102 === 　　As promoting the sound development of the securities market relied on a perfect legislation of securities law, and each capital market in each country had been damaged resulted from a global financial crisis, the purpose of this thesis was to make the legislation of securities law in Republic of China(Taiwan) more competitive by overviewing laws concerning securities again and improving the exsisting laws. 　　Securities and Exchange Act of Taiwan was enacted for the purpose of promoting the national economic development and the protection of investors, but it was a difficult problem to have the best of both worlds. Paragraph 1 of Article 20 in Securities and Exchange Act provides that, during the public offering, issuing, private placement, or trading of securities, there shall be no misrepresentations, frauds, or any other acts which are sufficient to mislead other persons. And Paragraph 2 of this Article provides that, The financial reports or any other relevant financial or business documents filed or publicly disclosed by an issuer in accordance with this Act shall contain no misrepresentations or nondisclosures. Paragraph 3 of this Article and Article 20-1 further stipulate for the civil liability of violation. 　　How to identify the “responsible actor” of civil remedies for Article 20 violation is a highly contentious question. The traditional debate on the responsible actor concept was misguided, and anyone who was involved in the securities fraud scheme is likely to be held liable for the damages if other elements are met. 　　In fact, in securities fraud cases, the investors’ damages were not only resulted from the primary actor’s act, but also the secondary actor’s assistance. However, as the secondary actor was not entitled to create or announce a financial statement, and he was also not the counterparty of public offering, issuing, trading or private placement and trading of securities, there was ambiguity about the secondary actor’s civil liability under Securities and Exchange Act. In Taiwan, the courts held that although the secondary actor wasn't liable for his actions under Securities and Exchange Act, he might still liable under tort law. As a result, Securities and Exchange Act could be impracticable under this situation. 　　In conclusion, this thesis recommends secondary actor shall be held liable for damages under Article 20 and 20-1 in Securities and Exchange Act. And each should be held responsible proportionately to his own participation in the fraud, so it could meet the purposes of the economic development and the protection of investors.