新三板引入做市商制度的法律问题探析

发布时间：2018-07-05 08:14

本文选题：新三板 + 做市商制度　；参考：《华东政法大学》2015年硕士论文

【摘要】：中国的新三板市场经历了俩次扩容以后已经成为了中小企业直接融资的场外资本市场,为适应新的交易环境,新三板市场改变原有交易方式,通过做市商做市实现股权转让。做市商制度在欧美市场得到发展和完善,为欧美资本市场的健康发展做出了不可估量的贡献。但在国内,并没有充足的做市商制度建设的经验可供借鉴,因此在新三板市场引入做市商制度,不得不立足于国内资本市场的基本情况,参照欧美市场的成功经验一步步探索。原三板市场开始扩容至全国中小企业股份转让系统成立,越来越多的公司顺利在新三板市场挂牌,融资及股权转让需求得到大幅度提升,在这种背景下推出通过券商做市的交易方式,显然是符合市场规律的,同时还有利于激发投资者投资热情。但就现有的法律法规及制度框架来看,在新三板市场实行做市商制度还是会存在一定的问题,比如说做市商在做市过程中所承担的义务与其享有的权利不协调,缺乏做市动力;以及对做市商的监管力度不够,新三板做市商有可能会垄断报价、甚至合谋操纵市场价格,侵害投资者利益。即使是在做市商制度发展十分成熟的美国NASDAQ市场及英国伦敦市场,也曾经出现过类似的问题,甚至可以认为任何一个资本市场从做市商制度的开始实行、发展、完善的过程中都会存在一系列的问题,唯有坚持不断地发现问题、解决问题才能实现做市商制度的长远发展。一旦承担的义务过重,权利保障又不足,做市商的做市积极性必将受到重创,促进市场流动也是无从谈起。新三板市场对做市商的买卖价差做出了5%的限制,但这种只有上线没有下线的限制无疑会将做市商的利润压制最低甚至会发生亏损。但同时,做市商所要承担的义务包括双边报价、推荐挂牌、信息披露等,高成本高风险的义务承担,缺少足够的权利激励。参照美国、台湾等资本市场的制度建设,新三板市场需要增加对做市商的权利激励,减免做市商的部分交易费用,降低做市商的做市成本;并减少做市商的义务性规定。混合型做市商制度对做市商串谋报价有一定的抑制作用,但新三板市场所实行的传统型做市商制度监管的最大难点就是预防做市商相互合谋,维持市场的买卖价差。因此,相关监管部门需要对做市商的做市行为进行全程监管,尤其是报价监管和信息披露监管更是关注重点。一方面设置定期评估考核制度,对考核成绩优异的给予奖励,考核不合格的做市商及时予以淘汰;另一方面,建立科学的信息披露制度,确保信息披露的及时性和充分性。本文的出发点就是通过总结发达资本市场的做市商制度完善的经验,并分析国内某些资本市场试行做市商制度没有获得成功的原因,探索出完善新三板市场的做市商法律制度构建的路径。
[Abstract]:After two expansions, China's new third board market has become the over-the-counter capital market for direct financing of small and medium-sized enterprises. In order to adapt to the new trading environment, the new third board market has changed the original trading mode and realized equity transfer through market making. The market maker system has been developed and perfected in the European and American markets, which has made inestimable contribution to the healthy development of the European and American capital markets. But in our country, there is not enough experience to learn from the construction of market maker system, so the introduction of market maker system in the new third board market has to be based on the basic situation of domestic capital market and explore step by step with reference to the successful experience of European and American markets. The original third Board market began to expand to the establishment of the national small and medium-sized enterprises share transfer system. More and more companies were successfully listed in the new third board market, and the demand for financing and equity transfer was greatly increased. In this context, the introduction of securities trading through the market is clearly in line with the market law, but also conducive to stimulate investor investment enthusiasm. However, from the point of view of the existing laws, regulations and institutional framework, there will still be some problems in the implementation of the market-maker system in the new third board market. For example, the obligations undertaken by the market-makers in the process of making the market are not in harmony with their rights, and they lack the motivation to do the market. And not enough supervision of market makers, the new third board market makers may monopolize prices, or even collusive manipulation of market prices, against the interests of investors. Even in the NASDAQ market of the United States and the London market in the United Kingdom, where the market maker system is very mature, there have been similar problems. It can even be considered that any capital market has developed from the beginning of the market maker system. There will be a series of problems in the process of perfection. Only by constantly discovering and solving the problems can the market maker system develop in the long run. Once the obligation is too heavy and the protection of rights is insufficient, the enthusiasm of market makers will be hit hard, and it is impossible to promote the market flow. The new third-market has imposed a 5% limit on market makers' price differentials, but such restrictions, which only go up and down without going offline, will undoubtedly put the market makers' profits at a minimum and even lead to losses. But at the same time, the obligations of market makers include bilateral quotation, recommendation listing, information disclosure, high cost and high risk obligation, lack of sufficient right incentive. Referring to the system construction of the capital markets such as the United States and Taiwan, the new third board market needs to increase the right incentive to the market makers, reduce some transaction costs of the market makers, reduce the market making costs of the market makers, and reduce the compulsory regulations of the market makers. The mixed market maker system can restrain the market maker collusive quotation to some extent, but the biggest difficulty of the traditional market maker system supervision is to prevent the market makers colluding with each other and to maintain the market price difference. Therefore, relevant regulatory authorities need to supervise the market making behavior of market makers throughout the process, especially the regulation of quotation and information disclosure is the focus of attention. On the one hand, the regular evaluation and assessment system should be set up to reward those with excellent results and eliminate the market makers who are not qualified. On the other hand, a scientific information disclosure system should be established to ensure the timeliness and adequacy of information disclosure. The starting point of this paper is to summarize the experience of perfecting the market maker system in developed capital markets, and to analyze the reasons why the market maker system has not been successful in some domestic capital markets. Explore the way to perfect the market maker legal system of the new three-board market.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.287

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