美国证券律师在证券发行中职责的演变

发布时间：2018-02-16 23:45

本文关键词： 证券律师证券发行公共责任　出处：《华东政法大学》2011年硕士论文　论文类型：学位论文

【摘要】：证券律师在美国证券发行中享有着举足轻重的权力,证券律师发表的法律意见对证券能否有效的发行起着决定性的作用。正是由于证券律师权力之大引发了人们对其义务的关注,即证券律师不仅应为聘请他的客户利益负责,同时还应对广大的公共投资者承担一定程度的责任。本文第一章论述了美国证券立法出现的最初几十年中,联邦法院、证券交易委员会以及证券律师本身对证券律师是承担公共职责还是仅承担私的责任这一观点所采取的保守态度。联邦证券法律制度源于1929年开始的“大萧条时代”,这些法律立法的核心目的是希望通过制度手段使发行证券的公司向公众投资者完整、真实、及时地披露其自身及其发行的证券的财务会计、公司治理情况等关键信息。至六十年代末七十年代初,证券律师作为证券发行的核心角色的义务和责任在经历了近四十年的发展后,被逐渐扩张的证券法律制度不断的强化。本文第二章阐述了美国证券法律制度在经过四十余年的发展后,法律界开始改变证券律师应承担何种职责的传统观念。美国证券交易委员会及联邦法院是这一时期主导这一变化的主体。从这个时期开始,证券交易委员会对证券律师执业行为进行了更为深入的干涉与渗透,那些没有全面履行其应尽职责的证券律师开始被证券交易委员会列入其监督管制的范围,联邦法院的诸多判决也促成了这一观念的积极转变。证券律师则为了维护自身的权利与监管机构之间进行着巧妙的斗争。本文第三章从多角度分析了《塞班斯-奥克斯利法案》对证券市场监管制度的影响。该法案是对证券市场基本架构进行的最大的一次改革,更是美国市场经济环境下对公司治理理念及制度的巨大修整。面对该法案造成的巨大冲击,证券律师纷纷行动四处游说希望能法案具体实施时能减少对其的不利影响。最终又一次的你争我夺之后,监管机构与证券律师之间新的平衡。美国证券市场上百年的发展历程中,无时无刻不经历着各种各样的风险,随时都可能导致市场崩溃并从此一蹶不振,但这一切最终都成功的被这个充满贪婪又不乏神奇的市场一一躲避并得以最终成为举世瞩目的伟大巨人。恰恰就是美国证券市场这种发展的历史能够有力的证明,在理性正义的制度保障之下,再艰巨的变革也能得到最为理想的结果。
[Abstract]:Securities lawyers play an important role in the issuance of securities in the United States. The legal opinions issued by securities lawyers play a decisive role in the effective issuance of securities. It is precisely because of the great power of securities lawyers that people pay attention to their obligations, that is, securities lawyers should not only be responsible for the interests of their clients. At the same time, the public investors should also assume a certain degree of responsibility. The first chapter of this paper discusses the first decades of the emergence of U. S. securities legislation, the Federal Court, The conservative attitude taken by the Securities and Exchange Commission and the securities lawyers themselves as to whether securities lawyers assume public or private responsibilities. The federal securities legal system dates back to the "Great Depression" that began in 1929. "the central purpose of these laws and legislation is to ensure the integrity of companies issuing securities to public investors through institutional means, True and timely disclosure of key information such as financial accounting and corporate governance of its own securities and its issued securities. Until the end of 60s and the beginning of 70s, After nearly forty years of development, the obligations and responsibilities of securities lawyers as the core role of securities issuance have been strengthened by the gradually expanding securities legal system. The second chapter expounds the development of American securities legal system after more than 40 years of development. The legal profession began to change the traditional notion of what kind of role a securities lawyer should have. The Securities and Exchange Commission and the Federal Court were the subjects that dominated the change during that period. The Securities and Exchange Commission has interfered more deeply with the practice of securities lawyers, and those securities lawyers who have not fully performed their due diligence have begun to be included in the scope of supervision and control by the Securities and Exchange Commission. A number of federal court decisions have also contributed to a positive shift in this view, with securities lawyers waging a clever struggle with regulators to defend their rights. The third chapter analyzes the influence of Sebens-Oxley Act on the securities market supervision system from many angles, which is the biggest reform of the basic structure of the securities market. It is also a huge overhaul of corporate governance concepts and systems in the American market economy environment. Facing the enormous impact of the Act, Securities lawyers have lobbied around to reduce the adverse impact of the bill when it is implemented. A new balance between regulators and securities lawyers has finally emerged after another battle. Over the course of hundreds of years of development in the United States, the stock market has experienced a variety of risks all the time, which can cause the market to collapse and never recover at any time. But in the end, all of this was successfully evaded by this greedy and magical market and eventually became a great giant of worldwide interest. This is a powerful proof of the history of this kind of development in the U.S. stock market. Under the system guarantee of rational justice, the most ideal result can be obtained through arduous changes.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D971.2;DD912.28;DD916.5

【参考文献】