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电证券法中民事责任追究制度的缺陷及技术
层面的几点补救建议视
Imperfections
of Practice of Civil Liability Ascertainment Under Stock
Act and Technical Proposals for Improvement |
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| Implemented over
the past several years, the Stock Act has proved to very constructive
in securing the order of stock market and protecting the rights
and interests of the investors. The implementation and operation
of the Act, however, has indicated some flaws and defects
coherent in the Act. Looking at the cases of serious infringement
of the investors’ rights that have been brought to our notice
since implementation of the Act, we have come to realize that
the affected investors were not sufficiently compensated under
the law, although the regulatory body of the stock exchange
market did hold the offenders responsible for the legal liabilities
under the law. The reason is that there exist material imperfections
in the practice of ascertaining the civil liabilities under
the Stock Act. Under such circumstances, it will become a
matter of great importance to explore the way to improve the
system of civil liabilities under the Stock Act. |
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| 已经实施了几年的证券法，在维持证券市场秩序和保护投资者权益方面，发挥了积极的作用。但在证券法的实施实践中，其中隐含的一些制度缺陷也逐渐显现出来。从近几年证券市场上出现的一些严重侵害投资者权益的事件来看，虽然证券监管机构依法追究了违法者的法律责任，但受损害的投资者却未能得到充分的法律救济，其原因就在于证券法上的民事责任制度存在严重缺陷。如何完善证券法上的民事责任制度。 |
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| I. The Prevailing
Supervisory System of China’s Stock Exchange Market and the
Imperfections of Its Practice of Civil Liabilities Ascertainment
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| 一、中国目前的证券市场监管体制及其在民事责任追究制度方面的缺陷
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| The Stock Act currently
prevailing in China has been designed and intended to serve
as a system of supervision and management of the stock market.
From the legal point of view, it is no more than a supervisory
institution meant to maintain the order of the market, and
is therefore designed to control the order of the market comprehensively
by use of administrative powers. Almost each of the total
36 chapters of the Legal Liabilities under the Stock Act is
associated with the ascertainment of administrative liabilities,
and most of the provisions are focused on the administrative
penalties. As per the Stock Act, administrative liabilities
are fixed in case of offences of almost each and every nature.
The Stock Act has provided for quite many types of administrative
penalties servable, including punishment of warning, imposition
of a fine, order to suspend issuance of shares, order to correct,
order to refund the collected funds, seizure of illegal gains,
prohibition of business, order to suspend business, cancellation
of qualification for the business, revocation of business
license, etc.. |
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| 中国目前证券法为实现其宗旨所建构的证券市场监管体制，从法律规范的角度看，实际上是一个纠察式的监管体制，就是行政权力主导下并发挥全面监控作用的市场监管机制。证券法“法律责任”一章共36条，几乎每一条都与行政责任有关，其中绝大多数是关于行政处罚的规定。证券法几乎对每一种违法行为，都规定了行政责任。证券法上规定的行政处罚种类相当之多，包括：警告；罚款；责令停止发行；责令改正；责令退还所募资金；没收非法所得；予以取缔；责令停业；取消从业资格；取消业务许可等。
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| Under such a supervisory
system whereby the law is intended for maintaining the order
of the market, the purpose of the Stock Act is fulfilled by
means of serving the offenders with administrative penalties
so that they dare not or become incapable of challenging the
law repeatedly, and a sign of caution and deterrence is brought
to the notice of other subjects of the market, thus serving
to maintain a market order of justice and integrity. This
type of practice provides a general instead of individual
protection by manipulating the market with administrative
authorities. Objectively speaking, it helps in reducing the
chances of judicial intervention and encouraging an awareness
and adherence to the Act among the investors. In consideration
of the principles whereby this practice is designed, the individual
justice will be fully secured for each individual investor
as the stock market is kept in an order reflecting an overall
justice by way of operation of the Act. |
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| 在纠察式的监管体制下，实现证券法宗旨的机制是：通过对具体违法者的行政处罚，使其不敢或者无力再进行违法行为，同时对其他市场主体起到警示和教育作用，从而实现证券市场的整体公正和整体秩序。这种机制是用一般性保护实现或替代个别性保护，用行政权力统治市场，客观上最大限度地减少司法机制的介入和投资者对证券法的主动运用。按照这种模式的建构理念，既然证券市场的整体公正已经建立，那么对待具体投资者的个别公正就已不在话下了。
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| Principally, the
Stock Act that is meant to manipulate the stock market mainly
by means of supervision serves as nothing more than an instrument
of control of the stock market by the state and a legal basis
for the operations of the supervisory organization. But, the
administrative penalties servable are intended to punish the
offenders only, and they are not designed to compensate or
protect those affected investors. Moreover, it would be hardly
possible in fact for the investors to resort to the Stock
Act for a protection of themselves, because the Act is not
actionable or applicable by the investors due to the material
imperfections of its practice of civil liability ascertainment.
Therefore, it is a supervisory system that discourages an
active participation of the investors. |
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| 以纠察式的市场监管体制为核心的证券法，基本上只是国家监管证券市场的工具和监管机构的执法依据。可是对违法者给予行政处罚，只是惩罚了违法者，对于具体受侵害的投资者权益，却未能给予救济和保护。而投资者实际上很难运用证券法保护自己的权益，因为在民事责任制度存在严重缺陷的证券法没有可诉性，不能被投资者主动运用。是欠缺投资者主动参与的监管机制。
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II. Significance
of the Practice of Civil Liability Ascertainment to the Supervision
of the Stock Market.
In the light of the practice of civil liability ascertainment
provided under the Stock Act, when the rights and interests
of the investors have been encroached, the investors shall
take the action to appeal to the judicial body for a protection
of themselves. The appeal lodged by the particular investor
will then be adjudicated by the judicial body in accordance
with the civil proceedings. With the support to their legitimate
appeals, the rights and interests of the investors are protected. |
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| 二、民事责任追究制度在证券市场监管中的存在意义
依据证券法上民事责任追究制度，当发生侵害投资者权益的违法事件时，由投资者主动提出保护其权益的诉求，由司法机关按照民事诉讼程序，对特定投资者主动提起的权益保护诉求进行审判，通过支持投资者的合法诉讼请求以保护投资者权益。
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| The essence of
this practice is to show the justice of law by bringing justice
to each individual case, to maintain an order of the stock
market in general by supporting the legitimate appeal of individual
investor, to maintain impartiality of the overall stock market
transactions by ensuring the righteousness of each individual
transaction, and to bring the stock market under the rule
by law through active participation of the investors. Therefore,
the practice of civil liability ascertainment under the Stock
Act is uniquely important in meeting the goals of market supervision.
Specifically, this practice is irreplaceably significant in: |
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| 这一制度实质上就是：通过个案公正实现法律公正，通过支持个别投资者的合法诉求实现证券市场的整体秩序，通过维护个别交易的公正性实现证券市场总体交易的公正性，通过投资者的主动参与实现证券市场的法治化。因此，证券法上民事责任制度在实现证券监管目的方面，有不可替代的作用。具体表现在：
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| 1. Helping to recover
the losses and damages. The affected investors will get compensated
through civil proceedings. This is directly attributable to
the ultimate purpose of individual protection by the practice
of civil liability ascertainment, and is an indispensable
tool specifically for fulfilling the purpose of the Stock
Act. Operation of the civil liability ascertainment will help
in compensating the aggrieved investors, which is impossible
by operation of the practice of administrative punishment
or criminal penalties. |
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| 1、弥补损失的作用。通过民事诉讼程序，使权益受损害的投资者得到赔偿，这是民事责任制度保护具体投资者的直接作用，是实现证券法宗旨的必不可少的具体措施。民事责任制度的实施可以使受损害的投资者得到救济，这是行政责任和刑事责任制度所不具有的机能。
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| 2. Deterring wrong-dongs.
Namely, to hold the offenders responsible for the civil liabilities
in order to deprive them of any illegal gains and to activate
a warning signal to those intended to perform wrongful acts.
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| 2、阻吓违法行为的作用。即通过追究违法行为人的民事责任，使其失去违法获取的利益，并对其他意欲实施违法行为的人起到警示作用。 |
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| 3. Encouraging
the investors to take active initiatives in the market supervision.
The practice of civil liability ascertainment is driven by
the investors’ concern of their own rights and interests.
The investors will, for the sake of protecting their own interests,
take active steps to get the wrong-doers being responsible
for the civil liabilities. This will encourage the investors
tremendously to participate actively in the supervision of
the stock market, and will help to make up for the inadequacies
of manpower, facilities and funds of the administrative supervisory
bodies, and to bring the stock market under control cost-effectively.
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| 3、提高投资者参与监管的主动性。民事责任机制的动力来自于投资者对自己权益的关心，投资者为维护自己利益，能够主动追究违法行为人的民事责任，从而最大限度地提高投资者参与证券市场监管的主动性，并可弥补行政监管机构人力物力财力的限制，降低证券市场监管成本。
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| 4. Making up for
the coherent incompetence of the practice of administrative
punishment. The practice of civil liability ascertainment
allows for fixing of joint and several liabilities, presumption
of wrong-doings as well as effects of damages. It is helpful
in holding the wrong-doers responsible for legal liabilities
and in protecting the legitimate interests of the investors.
While ascertainment of administrative liabilities will not
include the joint and several liabilities, nor will it allow
for a presumption of the effects of damages caused by the
offence. Apparently, the offenders responsible for civil liabilities
are not necessarily punishable for an administrative penalty.
Therefore, the practice of civil liability ascertainment is
of greater applicability. |
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| 4、弥补行政责任追究制度本身的不足。在民事责任制度中，可以实行连带责任，实行过错推定和损害结果推定等，便于追究违法行为人的法律责任，有利于维护投资者权益。而行政责任则不能是连带责任，追究行政责任时对违法行为的损害结果等不能推定。可见，在违法行为人承担民事责任的场合，并不必然地承担行政责任。因此，民事责任追究机制具有更广泛的适用性。
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| 5. Increasing the
chances of judicial intervention. Over the past two years
since enforcement of the Stock Act, the cases of the investors
vs exchange dealers have been dominant in the overall stock-related
cases handled by court. These are actually special contractual
disputes, to which Contract Law is applicable. The courts
have handled very few civil disputes specifically arising
out of or in connection with distribution and transaction
of shares, such as the disputes relating to disclosure of
false information, insider dealings, rigging of the market,
etc., because there exist serious imperfections coherent in
the practice of civil liability ascertainment, which is applied
to these types of civil disputes. Only when the practice of
civil liability ascertainment is perfected by legislators,
can more judicial intervention be expected in the supervision
of the stock market, so that the transparent, systematic and
impartial judicial procedures can be best applied. |
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| 5、扩大司法介入的程度。证券法实施两年来，法院受理的证券纠纷案件中，以股民和券商之间的纠纷较多，这实际上是一种特殊的合同纠纷，基本上适用合同法；而对于证券发行和交易中特有的民事纠纷，如虚假信息纠纷、内幕交易纠纷和操纵市场纠纷等，法院受理的较少，原因就在于解决后一类纠纷的民事责任制度存在重大缺陷。只有在立法上完善民事责任制度，才能在证券市场监管机制中扩大司法介入的程度，才能充分利用司法程序的公开性、系统性和公正性。
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| III. Proposals
to Technically Improve the Practice of Civil Liability Ascertainment
under the Stock Act |
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| 三、在技术层面上完善证券法的民事责任追究制度的几点设想
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| The legal provisions
can not be worked out properly for the practice of civil liability
ascertainment unless and until the investors’ rights and interests
are taken as the first priority of protection while supervising
the market under the Stock Act, and the principles are properly
determined prior to preparing the practice of civil liability
ascertainment under the Act. The following proposals are intended
to facilitate the legislation work technically: |
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| 把完善保护投资者的权益作为证券法律监管的首要目标，确定适当的证券法民事责任追究制度的设立原则，才能在设计具体的民事责任追究法律规范时，作出适当的技术选择。以下是几点在立法技术上的建议：
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| 1. Provisions and
rules must be specifically and expressly worded. The practice
of civil liability ascertainment under the Stock Act must
be clearly and particularly specified in the first place,
which is precedent to an effective execution thereof. The
provisions of the Stock Act relating to the civil liability
ascertainment, which cover only a small portion of the Act,
are seriously ambiguous. For instance: (1) the Act does not
specify the doctrine of liability fixation in the event of
civil liabilities for disclosure of false information by the
directors, supervisors and managers of the distributors; (2)
the specialist institutions and the specialists who prepare
auditing reports, assets assessment reports or legal letters
necessary for floating, listing or transactions, shall be
jointly and severally responsible for the portions for which
they are responsible. But, the Act does not specify the exact
implication of “the portions for which they are responsible”.
These imperfections will lead to an unenforceability or inconsistency
of the operation of this practice. It is therefore proposed
that the practice of civil liability ascertainment be clearly
and expressly prescribed in the Stock Act, clearly specifying
the particulars and principles of the fixation and the particulars
of an exception. |
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| 1、条文规定应具体明确。证券法上的民事责任制度首先要具体明确，这是有效实施民事责任制度的先决条件。现行证券法为数不多的民事责任规范却存在严重的模糊性，例如1.对于发行人的董事、监事、经理等披露虚假信息的民事责任，证券法未规定其归责原则；2.为证券的发行、上市或者证券交易活动出具审计报告、资产评估报告或者法律意见书等文件的专业机构和人员，就其负有责任的部分承担连带责任，但什么是“负有责任的部分”，却语焉不详。这些势必导致制度的不能实施，或者实施上的不一致性。因此，证券法应当将民事责任制度确定化，明确规定承担民事责任的归责事由、归责原则及免责事由等。
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| 2. Principle for
presumption of the fault of the listed companies. This principle
is fair and reasonable in protecting the rights and interests
of the investors and in maintaining the impartiality of the
stock market. For example, the investors at large could hardly
avail themselves to the process of information disclosure,
so the Stock Act shall provide for presumption of fault on
the disclosure of false information by the directors, supervisors
and mangers of the distributors. Furthermore, it is difficult
to determine the opposite parties of the insider dealings,
but such dealings are detrimental to the interests of not
just the counterparts of direct transactions, but also all
those investors who make the transactions right the other
way around. Hence, when improving the practice of civil liability
ascertainment under the Stock Act, such principle of fairness
and impartiality must be highlighted so that the interests
of the market and of the individual investors can be properly
weighed and balanced. |
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| 2、上市公司的过错推定原则。这一原则在保护投资者权益和维护证券市场公正性方面具有合理性。例如，公众投资者很难了解信息公开的操作过程，证券法应当对发行人董事、监事和经理的虚假披露信息行为实行过错推定原则；再如，内幕交易的相对人很难确定，但内幕交易行为不仅侵害了直接交易相对人的利益，也侵害了市场上所有作相反交易的投资者利益。因此在完善证券法上的民事责任追究制度方面也要贯彻这种合理公平的原则，在市场利益和个体利益之间寻求制约和平衡， |
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| 3. Specific provisions
whereby the investors would have more confidence in getting
compensated in the event of any infringement of their rights
and interests. If the law specifies a system whereby the investors
can take active steps to safeguard their interests, it must
be a system that prior to its application, the investors shall
be able to foretell its outcome when physically applied and
operated as a result of reasoning by themselves. Therefore,
the application and operation of the practice of civil liability
ascertainment under the Stock Act must be made more foreseeable
to the investors so as to protect and encourage them to resort
to such practice under the Act. For example, presumptive provisions
must be made to determine the scope of those affected by the
acts of violation of the Act, so as to help the investors
to decide whether they are the right claimants. Besides, presumptive
provisions must be prescribed as well to determine the effects
of the infringement together with expressly specified standards
and method of calculation to ascertain the losses incurred.
In addition, the burden of proof must be reasonably arranged.
All these efforts will help in making the outcome of proceedings
of the civil liability ascertainment more foreseeable to the
investors. |
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3、增强投资者对其权益受侵害时的获得赔偿的可能性方面的具体规定。
法律如果为投资者提供一个可以主动维护自己权益的制度，就应当是一个投资者经过理性分析后可以预测制度运用结果的制度，因此，必须增强证券法民事责任追究制度实施上的可预测性，以鼓励和保障投资者合理适当地运用证券法上的民事追究责任制度。例如，对证券违法行为的受害人范围实行推定制度，可以方便投资者判断自己是否为合适的原告人；对损害结果实行推定制度并明确规定损失的确定标准和计算方法，对举证责任的合理安排，都可提高投资者对民事诉讼结果的预测性。
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