證券虛假陳述民事責(zé)任追究機制實效研究
發(fā)布時間：2019-06-17 16:10
【摘要】：證券虛假陳述民事責(zé)任制度在我國建立已有12年,根據(jù)法律規(guī)定,實施證券虛假陳述行為的企業(yè),在證監(jiān)會、財政部行政處罰及法院刑事處罰后,投資者可以依法提起民事訴訟。該制度一方面開啟了投資者維護(hù)民事權(quán)益的司法渠道,保護(hù)了投資者利益；另一方面彌補了行政監(jiān)管的不足,在一定程度上遏制了該違法行為增長勢頭。但是,經(jīng)過12年的法律實踐,該制度也暴露出一些問題：一是實體法規(guī)定不科學(xué)、不完善,造成投資者損失認(rèn)定難,民事賠償?shù)�；二是程序法�?guī)定不合理,審理期限長、訴訟成本高；三是我國人民法院缺乏群體性訴訟的審判經(jīng)驗,法院自身軟硬件建設(shè)滯后；四是隨著我國經(jīng)濟(jì)發(fā)展、群體分化、社會變革加深,我國目前解決證券虛假陳述民事糾紛思路較窄、方法單一。 學(xué)界對證券虛假陳述民事責(zé)任追究機制的理論研究較多,但是實效研究尚處于空白,部分學(xué)者對該制度的論證缺乏數(shù)據(jù)支持。實效研究是發(fā)現(xiàn)問題、分析原因、提出對策的前提。搜集、統(tǒng)計12年間(2001年—2012年)證監(jiān)會處罰的159家實施虛假陳述行為的企業(yè),通過大量的數(shù)據(jù)、圖表分析我國證券虛假陳述行為的發(fā)案趨勢、民事起訴率、勝訴率、賠償率以及賠償金額所占損失金額的比重等,對比美國、歐洲國家證券虛假陳述民事糾紛的數(shù)據(jù),發(fā)現(xiàn)我國證券虛假陳述民事責(zé)任存在的問題。 通過分析、借鑒我國學(xué)界的研究成果,我國證券虛假陳述民事責(zé)任追究難的原因在于我國法院審判水平低,單獨訴訟與共同訴訟不適合該類民事訴訟小額多數(shù)的特征：我國訴外糾紛解決機制尚未大規(guī)模運用,解決該類民事糾紛過分集中在人民法院；最高人民法院出臺的《關(guān)于受理證券市場因虛假陳述引發(fā)的民事侵權(quán)糾紛案件有關(guān)問題的通知》(以下簡稱通知)以及《關(guān)于審理證券市場因虛假陳述引發(fā)的民事賠償案件的若干規(guī)定》(以下簡稱規(guī)定)存在法律規(guī)定不完善、不科學(xué)等問題。 破解我國證券虛假陳述民事責(zé)任追究難的問題需要以下五個方面： 1.汲取成功審判經(jīng)驗提高審判水平。這些成功經(jīng)驗主要有東方電子科技案、大慶聯(lián)誼案、東盛科技案等,這些案件的成功經(jīng)驗有些已經(jīng)被部分法院運用,有些經(jīng)驗還尚未推廣,通過系統(tǒng)總結(jié),期待能為提升人民法院審判水平有所幫助。 2.借鑒美國集團(tuán)訴訟完善我國代表人訴訟制度。在司法實踐中,美國集團(tuán)訴訟中的勝訴酬金制度、聲明退出制度成功地解決了群體性訴訟小額多數(shù)的難題。但是,美國集團(tuán)訴訟也暴露出“濫訴”的弊端,該制度淪為律師牟利的工具,在證券市場成為敲詐上市公司的手段,而維護(hù)中小投資者利益的制度設(shè)計初衷與司法實效漸行漸遠(yuǎn)。國情有別,美國集團(tuán)訴訟全盤移植必然在我國出現(xiàn)水土不服的問題,我國代表人訴訟制度發(fā)展已有多年,在一定程度上也解決了群體性訴訟人數(shù)眾多的難題,進(jìn)一步優(yōu)化代表人訴訟制度,可以借鑒美國集團(tuán)訴訟中的先進(jìn)之處,在我國建立律師風(fēng)險代理制度與聲明退出制度。 3.建立直接起訴規(guī)則與完善前置程序。前置程序設(shè)計初衷,一是避免“訴訟潮”的出現(xiàn)；二是發(fā)揮舉證功能,解決投資者舉證難的問題。在司法實踐中,前置程序相對發(fā)揮了舉證功能,節(jié)約了投資者的維權(quán)成本。但是,在行政監(jiān)管資源不足、行政監(jiān)管手段滯后的情況下,也造成部分侵權(quán)者逃脫行政監(jiān)管而使投資者不能維權(quán)的問題。在司法實踐中,盡管前置程序存在的問題比較多,但亦有優(yōu)點,因此,針對前置程序在其制度原有的基礎(chǔ)上進(jìn)行改良。首先,建立直接起訴規(guī)則,允許投資者在遭受不法侵害時提起民事訴訟,投資者直接提起的民事訴訟,可以發(fā)揮社會監(jiān)督證券市場違法行為的效果,填補行政監(jiān)管的不足,在直接起訴中,需要投資者自己承擔(dān)舉證責(zé)任；其次,保留前置程序的舉證功能,允許投資者引用前置程序所查獲的證據(jù)。 4.引進(jìn)訴外糾紛解決機制。訴外糾紛解決機制在國外發(fā)展多年,尤其是日本被稱為“ADR先進(jìn)國”。在我國,訴外糾紛解決機制也廣泛應(yīng)用,尤其是調(diào)解制度、仲裁制度,在民商事案件中得到充分體現(xiàn)。但是,我國證券虛假陳述民事案件中,調(diào)解制度形式單一、仲裁制度欠缺,尤其是行政調(diào)解尚處于理論階段,很少得到實際應(yīng)用。ADR作為現(xiàn)代調(diào)停糾紛的主要方法,快速、專業(yè)的特性適應(yīng)了當(dāng)代社會的經(jīng)濟(jì)模式,因此,引進(jìn)訴外糾紛解決機制,具有現(xiàn)實而又迫切的意義。 5.完善民事賠償法律規(guī)定。加強高級管理人員民事責(zé)任追究,懲罰真正的違法行為實施者；完善前置程序損失計算方法,借鑒企業(yè)比準(zhǔn)法,注重投資者機會成本損失,遏制企業(yè)人為放大交易量行為降低損失數(shù)額的行為；統(tǒng)一證券虛假陳述認(rèn)定的時點,科學(xué)認(rèn)定虛假陳述披露日、虛假陳述更正日、虛假陳述基準(zhǔn)日等時點,避免法院認(rèn)定時點不一的局面。
[Abstract]:The system of civil liability for false representation of securities has been established in China for 12 years. In accordance with the provisions of the law, the enterprises implementing the false statement of securities may file a civil action according to law after the CSRC, the administrative penalty of the Ministry of Finance and the criminal punishment of the court. On the one hand, the system has opened the judicial channel of the investor to safeguard the civil rights and interests, and protected the interests of the investors; on the other hand, the deficiency of the administration supervision is made up, and the growth of the illegal act is restrained to a certain extent. However, after 12 years of legal practice, the system also exposes some problems: one is that the provision of substantive law is not scientific and is not perfect, so that the loss of investors is difficult and the civil compensation is low; the second is that the procedural law is unreasonable, the trial period is long, and the litigation cost is high; Third, the people's court of our country lacks the trial experience of mass litigation, and the software and hardware construction of the court is lagging; the fourth, with the development of our country, the group differentiation and the deepening of the social change, our country's current solution to the securities false statement civil dispute is narrow and the method is single. The academic circle has a lot of theoretical studies on the mechanism of the investigation of the civil liability of the securities false statement, but the effect research is still in the blank, and some scholars lack the data support for the demonstration of the system. The study of effectiveness is the discovery of the problem, the cause of the analysis, and the forward of the countermeasures. To collect and collect 159 enterprises with false statement behavior, which are punished by the CSRC in the period of 12 years (2001-2012), and through a large amount of data, the paper analyzes the trend of the issuance of false statement of securities in China, the rate of civil prosecution and the success of the case. The question of the existence of the civil liability of the false statement of the securities in China is found by comparing the data of the misrepresentation of the securities of the United States and the European countries with the proportion of the amount of the loss, the rate of compensation and the amount of the loss in the amount of the compensation. By analyzing and drawing on the research results of the academic circle of our country, the reason that the civil liability of the securities false statement of our country is difficult is that the trial level of the court of our country is low, the individual lawsuit and the co-action are not suitable for the micro-majority of this kind of civil action It is characterized by that the dispute settlement mechanism in our country has not been applied on a large scale, and the settlement of this kind of civil disputes is over-concentrated in people The People's Court; Notice of the Supreme People's Court (hereinafter referred to as" Notice ") on the Issues Related to the Handling of Civil Infringement Cases Caused by the False Statement of the Securities Market (hereinafter referred to as" Notice") and "Some Provisions on the Trial of the Civil Compensation Cases Caused by the False Statement of the Securities Market" (hereinafter referred to as the "Notice of the People's Court") The existence of legal provisions is not perfect, and is not scientific It is necessary to solve the problem that the civil liability of the securities false statement of our country is difficult to hold. in that next five areas:1. draw a successful trial, The successful experience of these cases has been applied by some courts, and some of the experience has not been extended. It is expected that the people's court can be improved by the system summary. help with that level of judgment.2. draw on the perfection of the American group's lawsuit China's representative litigation system. In the judicial practice, the system of successful compensation in the lawsuit of the United States Group has declared that the withdrawal system successfully solved the group However, the lawsuit of the American Group has also exposed the defects of the "cliche", which is a tool for the lawyers to make profits, which is the means of blackmailing the listed company in the securities market, and the system of maintaining the interests of the small and medium-sized investors is designed There are many problems in the development of the representative litigation system of our country, and the problem of the large number of group lawsuits has been solved to a certain extent, and further To optimize the representative litigation system, we can build a lawyer risk agent in our country from the advanced points in the lawsuit of the American Group. system and declaration withdrawal system.3. Establishment of direct The first is to avoid the emergence of the "the tide of litigation", and the second is to play the function of proof. to solve the problem of difficulty in the proof of the investors, and in the judicial practice, the pre-set procedure has the function of proof, The cost of protecting the rights of the investors is saved. However, in the case of the shortage of the administrative supervision resources and the lag of the administrative supervision means, some of the offenders have escaped the administration supervision. The problem that the investor can't protect the rights. In the judicial practice, although there are many problems in the previous procedure, there are advantages. Therefore, the previous procedure is in its system. First, the direct prosecution rules are established to allow the investors to file a civil action when they are exposed to the lawless, and the civil action directly initiated by the investors can play a role in the social supervision of the illegal activities of the securities market and fill the administrative supervision In the case of direct prosecution, the burden of proof is required by the investor; secondly, the proof function of the pre-set procedure is retained, and the investors can be allowed to lead The evidence that was seized by the previous procedure. 4. Introduce the dispute settlement mechanism. The dispute settlement mechanism has been developed abroad for many years, especially in Japan, "The advanced countries of". The ADR ". In our country, the dispute settlement mechanism is also widely used, especially the mediation system and the arbitration system. In civil and commercial cases, it is fully reflected in the civil and commercial cases. However, in civil cases of false representation of securities in our country, the form of mediation system is single, and the arbitration system is short, especially the administrative mediation is still in the position In the theory stage, the actual application is rarely obtained. ADR, as the main method of modern mediation, is fast and professional to adapt to the economic model of the contemporary society. Therefore, the introduction of an external dispute resolution machine The system is of practical and urgent significance. 5. Improve the civil liability law, strengthen the civil liability of the senior management, punish the real perpetrators, improve the calculation method of the previous procedure loss, draw on the enterprise specific law, pay attention to the loss of opportunity cost of the investor, and stop the man-made discharge of the enterprise The act of reducing the amount of the loss of the large trading volume; the time point of the identification of the false statement of the unified securities, the filing date of the false statement of the scientific judgment, the date of false statement correction, the base date of the false statement, etc.
【學(xué)位授予單位】：安徽大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D922.287;D923
本文編號：2501107
[Abstract]:The system of civil liability for false representation of securities has been established in China for 12 years. In accordance with the provisions of the law, the enterprises implementing the false statement of securities may file a civil action according to law after the CSRC, the administrative penalty of the Ministry of Finance and the criminal punishment of the court. On the one hand, the system has opened the judicial channel of the investor to safeguard the civil rights and interests, and protected the interests of the investors; on the other hand, the deficiency of the administration supervision is made up, and the growth of the illegal act is restrained to a certain extent. However, after 12 years of legal practice, the system also exposes some problems: one is that the provision of substantive law is not scientific and is not perfect, so that the loss of investors is difficult and the civil compensation is low; the second is that the procedural law is unreasonable, the trial period is long, and the litigation cost is high; Third, the people's court of our country lacks the trial experience of mass litigation, and the software and hardware construction of the court is lagging; the fourth, with the development of our country, the group differentiation and the deepening of the social change, our country's current solution to the securities false statement civil dispute is narrow and the method is single. The academic circle has a lot of theoretical studies on the mechanism of the investigation of the civil liability of the securities false statement, but the effect research is still in the blank, and some scholars lack the data support for the demonstration of the system. The study of effectiveness is the discovery of the problem, the cause of the analysis, and the forward of the countermeasures. To collect and collect 159 enterprises with false statement behavior, which are punished by the CSRC in the period of 12 years (2001-2012), and through a large amount of data, the paper analyzes the trend of the issuance of false statement of securities in China, the rate of civil prosecution and the success of the case. The question of the existence of the civil liability of the false statement of the securities in China is found by comparing the data of the misrepresentation of the securities of the United States and the European countries with the proportion of the amount of the loss, the rate of compensation and the amount of the loss in the amount of the compensation. By analyzing and drawing on the research results of the academic circle of our country, the reason that the civil liability of the securities false statement of our country is difficult is that the trial level of the court of our country is low, the individual lawsuit and the co-action are not suitable for the micro-majority of this kind of civil action It is characterized by that the dispute settlement mechanism in our country has not been applied on a large scale, and the settlement of this kind of civil disputes is over-concentrated in people The People's Court; Notice of the Supreme People's Court (hereinafter referred to as" Notice ") on the Issues Related to the Handling of Civil Infringement Cases Caused by the False Statement of the Securities Market (hereinafter referred to as" Notice") and "Some Provisions on the Trial of the Civil Compensation Cases Caused by the False Statement of the Securities Market" (hereinafter referred to as the "Notice of the People's Court") The existence of legal provisions is not perfect, and is not scientific It is necessary to solve the problem that the civil liability of the securities false statement of our country is difficult to hold. in that next five areas:1. draw a successful trial, The successful experience of these cases has been applied by some courts, and some of the experience has not been extended. It is expected that the people's court can be improved by the system summary. help with that level of judgment.2. draw on the perfection of the American group's lawsuit China's representative litigation system. In the judicial practice, the system of successful compensation in the lawsuit of the United States Group has declared that the withdrawal system successfully solved the group However, the lawsuit of the American Group has also exposed the defects of the "cliche", which is a tool for the lawyers to make profits, which is the means of blackmailing the listed company in the securities market, and the system of maintaining the interests of the small and medium-sized investors is designed There are many problems in the development of the representative litigation system of our country, and the problem of the large number of group lawsuits has been solved to a certain extent, and further To optimize the representative litigation system, we can build a lawyer risk agent in our country from the advanced points in the lawsuit of the American Group. system and declaration withdrawal system.3. Establishment of direct The first is to avoid the emergence of the "the tide of litigation", and the second is to play the function of proof. to solve the problem of difficulty in the proof of the investors, and in the judicial practice, the pre-set procedure has the function of proof, The cost of protecting the rights of the investors is saved. However, in the case of the shortage of the administrative supervision resources and the lag of the administrative supervision means, some of the offenders have escaped the administration supervision. The problem that the investor can't protect the rights. In the judicial practice, although there are many problems in the previous procedure, there are advantages. Therefore, the previous procedure is in its system. First, the direct prosecution rules are established to allow the investors to file a civil action when they are exposed to the lawless, and the civil action directly initiated by the investors can play a role in the social supervision of the illegal activities of the securities market and fill the administrative supervision In the case of direct prosecution, the burden of proof is required by the investor; secondly, the proof function of the pre-set procedure is retained, and the investors can be allowed to lead The evidence that was seized by the previous procedure. 4. Introduce the dispute settlement mechanism. The dispute settlement mechanism has been developed abroad for many years, especially in Japan, "The advanced countries of". The ADR ". In our country, the dispute settlement mechanism is also widely used, especially the mediation system and the arbitration system. In civil and commercial cases, it is fully reflected in the civil and commercial cases. However, in civil cases of false representation of securities in our country, the form of mediation system is single, and the arbitration system is short, especially the administrative mediation is still in the position In the theory stage, the actual application is rarely obtained. ADR, as the main method of modern mediation, is fast and professional to adapt to the economic model of the contemporary society. Therefore, the introduction of an external dispute resolution machine The system is of practical and urgent significance. 5. Improve the civil liability law, strengthen the civil liability of the senior management, punish the real perpetrators, improve the calculation method of the previous procedure loss, draw on the enterprise specific law, pay attention to the loss of opportunity cost of the investor, and stop the man-made discharge of the enterprise The act of reducing the amount of the loss of the large trading volume; the time point of the identification of the false statement of the unified securities, the filing date of the false statement of the scientific judgment, the date of false statement correction, the base date of the false statement, etc.
【學(xué)位授予單位】：安徽大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D922.287;D923
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