新三板中介机构民事责任探究

发布时间：2018-07-31 10:09

【摘要】：新三板市场自2001年发展至今,经过了近二十多年的积淀,在资本市场取得了惊人的成绩。由于这一融资平台系为广大中小企业打造,不光在国内,甚至在国外都成为资产市场的关注点。但是,新三版市场当中的虚假陈述行为不时发生,其中证券专业服务机构扮演了重要的角色。证券专业中介机构的不法行为,极大伤害了投资者的合法利益,造成投资热情急剧下降。透过关于新三板市场的法律法规,不难发现,关于证券专业中介机构的民事责任,相关立法并没有做出详细的规定,无形之中给法官判案也增加了不小的压力。而且,在实践当中,一旦发生证券专业中介机构侵权事件,投资者由于处于弱势地位,往往不能很好地维护自身的合法权益,只能“自认倒霉”。违规行为得不到法律的严惩,使得证券专业中介机构变本加厉。因此,面对这一问题,我们需要从立法上明晰其民事责任,以此来加强法官审判证券专业中介机构民事纠纷的可操作性,进而更好地规范中介机构的行为。此外,也与国家倡导的“资本市场国际化”战略不谋而合。文章从我国新三板市场近几年的发展情况展开,通过分析新三板市场发生的证券专业中介机构违规事件,找出现行新三板市场法律机制的不足,同时吸取发达国家多年以来关于场外市场的经验教训,为证券专业中介机构民事责任构建一个合乎逻辑的框架体系。本文以证券中介服务机构因不法行为造成投资者损失所招致的民事责任为研究对象,首先介绍了近年来新三板市场的发展情况,并通过证券专业中介机构在企业挂牌当中的不同分工,进一步了解证券专业中介机构的工作内容。其次,然后通过比较分析理论界关于证券专业中介机构侵权的民事性质,对证券专业中介机构的民事责任进行了深入分析,结合近几年新三板市场运行的基础情况,采取“侵权责任说”更为恰当。接着,从实体法(Substantive Law)的角度,对证券专业中介机构侵权责任的四大“构成要件”(主观过错、加害行为、损害事实以及因果关系)进行了一一论述,同时提出,对中介机构应适用“过错推定”的归责原则。最后谈到了当前投资者面临民事诉讼所遇到的一些困境,对新三板市场遇到的纠纷提出一些合理化的建议。包括借鉴美国场外交易市场中关于“集团诉讼”的相关经验、取消证券民事诉讼当中“诉讼前置程序”的规定、构建“中介机构执业责任保险”以及“多元化的纠纷解决之道”。
[Abstract]:The new three-board market has been developed since 2001, after nearly 20 years of accumulation, in the capital market has made amazing achievements. Because this financing platform is for the vast number of small and medium-sized enterprises, not only in the domestic, even in foreign countries have become the focus of the asset market. However, the misrepresentation in the new three-edition market occurs from time to time, in which the securities professional service organizations play an important role. The illegal behavior of the securities agency has greatly harmed the legitimate interests of investors and resulted in a sharp decline in investment enthusiasm. Through the laws and regulations of the new third board market, it is not difficult to find that the civil liability of the securities professional intermediary institutions, the relevant legislation has not made detailed provisions, invisibly has increased the pressure on judges to adjudicate cases. Moreover, in practice, once the infringement of securities professional intermediary institutions occurs, investors are often unable to protect their legitimate rights and interests because of their weak position, and can only "admit their own misfortune". Violations of the law can not be severely punished, so that the securities professional intermediary organizations intensified. Therefore, in the face of this problem, we need to clarify its civil liability from the legislation, so as to strengthen the operability of the judge to try the civil disputes of securities professional intermediary, and then better regulate the behavior of the intermediary. In addition, also with the state-initiated "capital market internationalization" strategy coincided. Based on the development of the new third board market in China in recent years, this paper analyzes the illegal events of the securities professional intermediary organizations in the new third board market, and finds out the deficiency of the current legal mechanism of the new third board market. At the same time, drawing on the experience and lessons of the over-the-counter market in the developed countries for many years, it constructs a logical framework system for the civil liability of the securities professional intermediary. This paper takes the civil liability incurred by securities intermediary service institutions as the object of study on the losses incurred by investors caused by illegal acts. Firstly, it introduces the development of the new third board market in recent years. And through the different division of labor of securities professional intermediary organization in the enterprise listing, we can further understand the work content of securities professional intermediary organization. Secondly, through the comparative analysis of the civil nature of the infringement of securities professional intermediary organizations in the theoretical circle, the civil liability of the securities professional intermediary institutions is deeply analyzed, and combined with the basic situation of the operation of the new three boards market in recent years, It is more appropriate to adopt the theory of tort liability. Then, from the perspective of substantive law (Substantive Law), the paper discusses the four "constitutive elements" (subjective fault, injurious act, damage fact and causality) of the tort liability of securities professional intermediary organization, and puts forward, at the same time, the four "constitutive requirements" (subjective fault, injurious act, damage fact and causality). The principle of "presumption of fault" should be applied to the intermediary institution. Finally, this paper discusses some difficulties that investors are facing in civil litigation, and puts forward some reasonable suggestions on the disputes encountered in the new third board market. Including drawing lessons from the relevant experience of "class-action" in the over-the-counter trading market in the United States, and cancelling the provisions of "Litigation Pre-Proceedings" in securities civil litigation. Construct the intermediary organization practice liability insurance "and the diversified dispute settlement way".
【学位授予单位】：北京外国语大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923

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