证券虚假陈述民事责任追究机制实效研究

发布时间：2019-06-17 16:10

【摘要】：证券虚假陈述民事责任制度在我国建立已有12年,根据法律规定,实施证券虚假陈述行为的企业,在证监会、财政部行政处罚及法院刑事处罚后,投资者可以依法提起民事诉讼。该制度一方面开启了投资者维护民事权益的司法渠道,保护了投资者利益；另一方面弥补了行政监管的不足,在一定程度上遏制了该违法行为增长势头。但是,经过12年的法律实践,该制度也暴露出一些问题：一是实体法规定不科学、不完善,造成投资者损失认定难,民事赔偿低；二是程序法规定不合理,审理期限长、诉讼成本高；三是我国人民法院缺乏群体性诉讼的审判经验,法院自身软硬件建设滞后；四是随着我国经济发展、群体分化、社会变革加深,我国目前解决证券虚假陈述民事纠纷思路较窄、方法单一。学界对证券虚假陈述民事责任追究机制的理论研究较多,但是实效研究尚处于空白,部分学者对该制度的论证缺乏数据支持。实效研究是发现问题、分析原因、提出对策的前提。搜集、统计12年间(2001年—2012年)证监会处罚的159家实施虚假陈述行为的企业,通过大量的数据、图表分析我国证券虚假陈述行为的发案趋势、民事起诉率、胜诉率、赔偿率以及赔偿金额所占损失金额的比重等,对比美国、欧洲国家证券虚假陈述民事纠纷的数据,发现我国证券虚假陈述民事责任存在的问题。通过分析、借鉴我国学界的研究成果,我国证券虚假陈述民事责任追究难的原因在于我国法院审判水平低,单独诉讼与共同诉讼不适合该类民事诉讼小额多数的特征：我国诉外纠纷解决机制尚未大规模运用,解决该类民事纠纷过分集中在人民法院；最高人民法院出台的《关于受理证券市场因虚假陈述引发的民事侵权纠纷案件有关问题的通知》(以下简称通知)以及《关于审理证券市场因虚假陈述引发的民事赔偿案件的若干规定》(以下简称规定)存在法律规定不完善、不科学等问题。破解我国证券虚假陈述民事责任追究难的问题需要以下五个方面： 1.汲取成功审判经验提高审判水平。这些成功经验主要有东方电子科技案、大庆联谊案、东盛科技案等,这些案件的成功经验有些已经被部分法院运用,有些经验还尚未推广,通过系统总结,期待能为提升人民法院审判水平有所帮助。 2.借鉴美国集团诉讼完善我国代表人诉讼制度。在司法实践中,美国集团诉讼中的胜诉酬金制度、声明退出制度成功地解决了群体性诉讼小额多数的难题。但是,美国集团诉讼也暴露出“滥诉”的弊端,该制度沦为律师牟利的工具,在证券市场成为敲诈上市公司的手段,而维护中小投资者利益的制度设计初衷与司法实效渐行渐远。国情有别,美国集团诉讼全盘移植必然在我国出现水土不服的问题,我国代表人诉讼制度发展已有多年,在一定程度上也解决了群体性诉讼人数众多的难题,进一步优化代表人诉讼制度,可以借鉴美国集团诉讼中的先进之处,在我国建立律师风险代理制度与声明退出制度。 3.建立直接起诉规则与完善前置程序。前置程序设计初衷,一是避免“诉讼潮”的出现；二是发挥举证功能,解决投资者举证难的问题。在司法实践中,前置程序相对发挥了举证功能,节约了投资者的维权成本。但是,在行政监管资源不足、行政监管手段滞后的情况下,也造成部分侵权者逃脱行政监管而使投资者不能维权的问题。在司法实践中,尽管前置程序存在的问题比较多,但亦有优点,因此,针对前置程序在其制度原有的基础上进行改良。首先,建立直接起诉规则,允许投资者在遭受不法侵害时提起民事诉讼,投资者直接提起的民事诉讼,可以发挥社会监督证券市场违法行为的效果,填补行政监管的不足,在直接起诉中,需要投资者自己承担举证责任；其次,保留前置程序的举证功能,允许投资者引用前置程序所查获的证据。 4.引进诉外纠纷解决机制。诉外纠纷解决机制在国外发展多年,尤其是日本被称为“ADR先进国”。在我国,诉外纠纷解决机制也广泛应用,尤其是调解制度、仲裁制度,在民商事案件中得到充分体现。但是,我国证券虚假陈述民事案件中,调解制度形式单一、仲裁制度欠缺,尤其是行政调解尚处于理论阶段,很少得到实际应用。ADR作为现代调停纠纷的主要方法,快速、专业的特性适应了当代社会的经济模式,因此,引进诉外纠纷解决机制,具有现实而又迫切的意义。 5.完善民事赔偿法律规定。加强高级管理人员民事责任追究,惩罚真正的违法行为实施者；完善前置程序损失计算方法,借鉴企业比准法,注重投资者机会成本损失,遏制企业人为放大交易量行为降低损失数额的行为；统一证券虚假陈述认定的时点,科学认定虚假陈述披露日、虚假陈述更正日、虚假陈述基准日等时点,避免法院认定时点不一的局面。
[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.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.287;D923

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