證交法 20 條之 1 責任比例計算式之提出

依證券交易法第20條之1，財務報告發生主要內容有虛偽或隱匿之情事時，負過失責任之人依責任比例負賠償責任。責任比例參考立法理由係由法院依各案考量可歸責於原告損失之每一負過失責任人員之行為特性決定之。然而基於內部監理或審查或外部查核失敗，所導致未偵測出財報不實之過失行為，通常與損害發生之因果關係並不具體，因此現行實務法院於決定責任比例時極具高度主觀，無脈絡可循。本文試著為該責任比例提出客觀具體之計算式作為實務運用之參考。首先探討財報不實與各過失主體間關係，財報之於資本市場及公司股價關係，嘗試提出過失主體間可依職權群組共負相同責任、提出淨值法來調整採「毛損法」計算投資人損失時使被告連詐欺以外之市場因素也賠付之缺點、設計透過此計算式以避免負過失責任主體因不真正連帶債務責任而償付超過故意犯之賠償金額、及考量各過失主體間職權、獨立性、受有利益高低等權利義務設計責任權數以各過失主體間責任程度產生區隔。基於證券交易法第20條之1自民國95年度公布以來，已累積相當判例，本文收集過往法院判例，試圖整理各判例異同之處，並就各判例見解相同處，視為實務通說並引用之。最後結合上述內容就該責任比例提出計算式。

關鍵字

財報不實；責任比例；證券交易法第 20 條之 1 ；毛損法；淨損差額法

並列摘要

Pursuant to Article 21-1 of the Securities and Exchange Act, when the essential content of the financial reports of public companies contain misrepresentations or nondisclosures, the persons who are judged with act of negligence for the misrepresentations or nondisclosures shall bear liability for damages in proportion to their degree of responsibility. Based on the legislative explanation of this Act, it also leaves the court to decide the percentage of damage remedy for each liable person , case by case, based on considerations, as a whole, of the person’s misconduct or negligence features of not able to preventing the misrepresentations or nondisclosures from occurrence. However, in most of cases, the misconduct or negligence are not so obvious that can directly link to the causes of mispresented or nondisclosed financial reports. As a result, currently, the rationales used by courts to determine the percentage of damage remedy are very subjective and lacking predictable feature. This thesis is trying to propose an objective and computable mathematical calculation to determine the percentage of damage remedy. First, this thesis studied how is the reliable parties’ role or duty for the financial reports, and how the financial reports affect on the company’s stock price. Then, it concludes an observation that negligent persons could be aggregated by their roles or duty to share the same responsibility, and subsequently designated different weighted percentage for each group of negligent persons to reflect their different roles and responsibilities. Also, this thesis brought up an idea that a company’s net value should be used as an adjustment in order to reduce the downside that defends will overconsume the remedy responsibility under the gross income loss method as stock price is also affected by market factors other than just financial reports. Through this mathematical calculation, it also prevents that the persons charged with act of negligence pay out more remedy amounts than those who are charged with intent act. Moreover, since the Article 21-1 of the Securities and Exchange Act effected in 2006, there have been many judgements ruled by courts. Via studying and analyzing these judgments to identify views in common and leverage those views to form this mathematical calculation.