证券公司行政处置与破产清算程序的对接问题
发布时间：2018-08-03 07:46
【摘要】：近年，中国证券行业在政府推动下得以快速发展，但同时也遭遇不少问题。自然，政府也有责任解决由其监管不力而导致的一系列问题，特别是在证券公司破产清算制度中仍然存在行政处置与司法程序对接不当的问题。正因如此，2008年国务院发布了《证券公司风险处置条例》，以行政法规的形式确立了对证券公司风险处置的行政措施种类、形式等。纵观条例中关于行政清理的规定，应当说该程序已具有了一定程度上的破产清算程序的含义。但是，就风险证券公司处置过程而言，行政处置程序和破产清算程序，两者在适用法律、任务目标、主导机关等方面均存在较大差异，在对接上可能会出现各种法律问题和障碍。在证券公司破产清算的实践中，司法程序和行政处置工作因缺乏明确具体的法律依据，二者对接不当问题，使证券公司的破产清算工作无法顺利完成。本文系统地研究证券公司司法程序和行政处置的对接问题并探讨解决思路，，以便能够更好地处理证券公司的破产清理工作并推动证券公司风险处置收口工作有效进行。 本文第一部分主要介绍证券公司破产程序的法律适用，包括《企业破产法》的一般规定和《证券公司风险处置条例》的特别规定；第二部分主要分析证券公司行政处置与破产程序衔接上的缺陷，主要包括行政处置行为的法律地位不清，行政处置手段在使用上的缺陷，司法程序对行政处置行为监督和配合的缺位等；第三部分主要分析美国证券公司破产法的特别规范分析并加以借鉴，主要介绍美国SIPC的特点，客户支付令的介入和临时管理人制度。针对我国行政处置与司法配合的缺陷，本文第四部分从行政介入的理论基础入手，着力分析我国行政处置行为的主体正当性和程序规范性，并就司法程序对行政处置行为的司法认定和司法配合提出了建议。
[Abstract]:In recent years, China's securities industry has been developed rapidly by the government, but also encountered many problems. Naturally, the government also has the responsibility to solve a series of problems caused by its weak supervision, especially in the bankruptcy liquidation system of securities companies, there is still the problem of improper docking between administrative disposal and judicial procedures. For this reason, in 2008, the State Council issued the Regulation on risk disposal of Securities companies, which established the types and forms of administrative measures to deal with the risks of securities companies in the form of administrative laws and regulations. It should be said that the procedure has the meaning of bankruptcy liquidation procedure to some extent. However, as far as the disposal process of risk securities companies is concerned, there are great differences between administrative disposal procedures and bankruptcy liquidation procedures in the application of law, task objectives, leading organs, and so on. There may be various legal problems and obstacles in docking. In the practice of bankruptcy liquidation of securities companies, due to the lack of clear and specific legal basis for the judicial procedure and administrative disposal, the improper connection between the two makes the bankruptcy liquidation of securities companies unable to be completed smoothly. This paper systematically studies the connection between judicial procedure and administrative disposal of securities companies and discusses the solutions so as to better deal with the bankruptcy clean-up of securities companies and to promote the risk disposal of securities companies to carry out effectively. The first part of this paper mainly introduces the legal application of the bankruptcy procedure of the securities company, including the general provisions of the Enterprise bankruptcy Law and the special provisions of the Securities Company risk disposal regulations. The second part mainly analyzes the defects in the connection between the administrative disposal and the bankruptcy procedure of the securities company, including the unclear legal status of the administrative disposal act and the defects in the use of the administrative disposal means. The third part mainly analyzes and draws lessons from the analysis of the special norms of the bankruptcy law of American securities companies, mainly introduces the characteristics of SIPC in the United States. Customer payment order intervention and interim administrator system. In view of the defects of our country's administrative disposal and judicial cooperation, the fourth part of this paper begins with the theoretical basis of administrative intervention, and focuses on the analysis of the legitimacy of the subject and the procedural norms of the administrative disposal in our country. It also puts forward some suggestions on judicial cognizance and judicial cooperation.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.287;D922.291.92
本文编号：2161078
[Abstract]:In recent years, China's securities industry has been developed rapidly by the government, but also encountered many problems. Naturally, the government also has the responsibility to solve a series of problems caused by its weak supervision, especially in the bankruptcy liquidation system of securities companies, there is still the problem of improper docking between administrative disposal and judicial procedures. For this reason, in 2008, the State Council issued the Regulation on risk disposal of Securities companies, which established the types and forms of administrative measures to deal with the risks of securities companies in the form of administrative laws and regulations. It should be said that the procedure has the meaning of bankruptcy liquidation procedure to some extent. However, as far as the disposal process of risk securities companies is concerned, there are great differences between administrative disposal procedures and bankruptcy liquidation procedures in the application of law, task objectives, leading organs, and so on. There may be various legal problems and obstacles in docking. In the practice of bankruptcy liquidation of securities companies, due to the lack of clear and specific legal basis for the judicial procedure and administrative disposal, the improper connection between the two makes the bankruptcy liquidation of securities companies unable to be completed smoothly. This paper systematically studies the connection between judicial procedure and administrative disposal of securities companies and discusses the solutions so as to better deal with the bankruptcy clean-up of securities companies and to promote the risk disposal of securities companies to carry out effectively. The first part of this paper mainly introduces the legal application of the bankruptcy procedure of the securities company, including the general provisions of the Enterprise bankruptcy Law and the special provisions of the Securities Company risk disposal regulations. The second part mainly analyzes the defects in the connection between the administrative disposal and the bankruptcy procedure of the securities company, including the unclear legal status of the administrative disposal act and the defects in the use of the administrative disposal means. The third part mainly analyzes and draws lessons from the analysis of the special norms of the bankruptcy law of American securities companies, mainly introduces the characteristics of SIPC in the United States. Customer payment order intervention and interim administrator system. In view of the defects of our country's administrative disposal and judicial cooperation, the fourth part of this paper begins with the theoretical basis of administrative intervention, and focuses on the analysis of the legitimacy of the subject and the procedural norms of the administrative disposal in our country. It also puts forward some suggestions on judicial cognizance and judicial cooperation.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.287;D922.291.92
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