Research On The Allocation,Operation And Supervision Of Chinese Securities Regulation Power

The securities market is a historical product of the economic development into a certain stage.The regulation of the securities market is also due to the historical needs.Governments and international securities regulatory organizations have clarified the basic values of securities regulation.The legitimacy analysis of securities regulation itself is actually replaced by experience in reality.Although national legal institutions are reproducible,they do not reduce the need of researching on securities regulatory law.Because developed securities market did not transfer along with the transplantation of relevant securities legal institutions.Even under the circumstance of global regulatory convergence,the effectiveness of the securities regulatory institutions depends on the local customs.In the field of securities regulation reaserch,although financial research has certain first-mover advantages,the financial regulation institution itself is based on the system of laws and rules.It is an important method of legal research to discuss the specific direction of the legal reform on a basis of the operational effects of the real legal system.In the securities regulation institution,the state as the ultimate responsible party has both the power and duty of regulatingeconomic activities in the securities market,and the regulated parties also enjoy the rights to legally participate in the securities market activities.How to exercise the power of securities regulators,and whether it is possible to restrict or deprive the rights of the regulated parties,is the fundamental problem to be solved in the process of legalization and marketization of the securities market.As an important financial market of our country,the securities market is related to the health and stability of the national economy as a whole.The governance of the securities market must also conform to the direction and requirements of the modernization of state governance.The first chapter is about the general theory of securities regulatory power.Securities regulation in the legal institution and practice context of our country includes both government behavior and the behavior of self-regulatory organizations(SRO).Foreign interpretations of regulation are more broadly defined.The modern securities regulatory institution thus originated from tthe United States which markert was the most prosperous.It was established in Roosevelt’s New Deal,which target is clearly directed to regulate the issuance and trading of the securities market.The securities regulatory institution has developed into a whole legal system in several economic crises as the market develops.There are numerous theoretical hypotheses and studies around securities regulation which represent the viewpoints of relaxing regulation or strengthening regulation.These positions ultimately still represent the legal issue of securities regulatory power,because power is the core of securities regulatory institution.The second section is to explain my research subject,i.e.,the securities regulation power.It is derived from the influence of the state in the economic activities with the relevant securities,and has the comprehensiveness based on its subjects and contents.To clarify the reasons for the establishment of securities regulatory power and the inherent relationship between power restriction and right protection,is the basis for studying securities regulatory power.The third section explores the nature and characteristics of securities regulatory power,which is a comprehensive power that includes multiple abilities.The securities regulation institution has been formed around the securities regulatory power,and is subordinate to the financial regulation institution.There are also many subjests of the power.In the institutional arrangement,it is necessary to have a systematic thinking of deepening universal connection,to form a sense of overall coordination,and to require that all aspects of the allocation,operation,and supervision of securities regulatory power reflect the concept of common governance of pluralistic entities including the government,the market and the society,for achieving better regulation.The second chapter is about the problem of the allocation of securities regulatory power.The first section is a theory that explains the allocation of securities regulatory power.The allocation of securities regulatory power must always be considered from two dimensions: first,how the boundaries of power are determined in the relationship between the government,the society and the market,i.e.,the arrangement between the government’s securities regulatory power and self-regulatory power.And second,how the power is concentrated or distributed among multiple entities,i.e.,the arrangement of government securities regulation powers within the national financial regulation institution,including the horizontal relationship with the financial regulation powers in other industries,and the division of financial affairs between the central government and local governments,namely vertical allocation of government securities regulatory power.The second section is to learn from the foreign experience of the allocation of securities regulation power.The financial regulation institution is mainly divided into a unified regulation institution and a diversified regulation system.The securities regulatory institution of countries around the world are divided into three categories: institutional,functional and targeted,which is adapt to the social division of labor in different degrees.The functional differentiation of the early society is expressed in the differences of product forms.The divisional regulation institution based on the different industries has once been the mainstream.When the social division of labor is further implied in the differences of product functions,the functional regulation institution is more suitable for the actual needs,and the targeted regulation institution expresses the subjective value pursuit of regulators.Both the functional type and the targeted type emphasize strenghtening the cooperation between the existing departments.Therefore,there is a tendency of the financial regulatory institution with developing from the division to the unified.Countries with totally self-discipline management nearly do not exist.The development history of securities markets decided the basic relationship between the government regulation and the market entities autonomy,and the countries have thus formed different allocation strategies.The third section analyzes the current situation of Chinese power allocation centering on the China Securities Regulatory Commission(CSRC)system,and summarizes its problems including that:(1)the government and market relations are not handled properly,(2)the horizontal allocation of government securities regulationpower is improper,(3)the vertical allocation of government securities regulation power is improper.Suggestions for such problems are:(1)scientifically the relationship between the government,the society and the market,(2)planning the horizontal allocation of government securities regulation power as whole,(3)coordinating the vertical allocation of government securities regulation powers.The third chapter is about the problem of the operation of securities regulatory power.The first section is the introduction of its.The definition of it means the exercise of power by the securities regulators to the regulated objects such as the market entities.The government securities regulation power is divided into quasi-legislative,administrative,and quasi-judicial powers.Each kind of power has its own operating principles.The second section is to compare the operation mechanism of Chinese securities regulatory power with the extraterritorial ones.The main operational mechanisms of Chinese securities regulatory power are:(1)Examinaition mechanism,(2)Inspection mechanism,(3)Administrative punishment and reconsideration mechanism,and(4)the self-regulation mechanism,taking the Shanghai Stock Exchange as an example.By such a contrast,it can be found that due to the functional unity of government securities regulation power and self-regulation power,a formal and substantial integration has taken place.The comparison between countries also shows that the restrictions on the securities regulatory power of different countries are different.Both the degrees of disclosure and the constrains of securities regulatory power operation are different.The degrees of protection of civil rights varies from country to country.The third section is to sort out the status quo and summary of the operation of Chinese securities regulatory power,and make recommendations.The status quo of its includes that the content of rulemaking rights is often beyond the upper law,the administrative licensing powers are shrinking,and the enforcement measures are complicated,which may make the same effects with administrative punishment,etc..In addition,government securities regulators have adopted other economic and administrative measures,and thus actually expand their powers.At the same time,self-regulation power is used less,but this situation may change after the introduction of relevant new regulations and rules.The problems of government securities regulation powers are that officers take regulation actions like gusts of wind and with selection,and some work mechanism is unreasonable and cannot play a role.The problem with self-regulation power is that its legal liability is unclear and it has not yet been commomly in administrative litigation,which makes its operation difficult to observe and lack of constraints.The fourth chapter is about the problem of the supervision to securities regulatory power.The first section is about the supervision theory to securities regulation power.The significance of supervision to securities regulation power is to affirm and protect the operation of securities regulation power,and prevent the abuse of securities regulation powers.Chinese current supervision system is divided into three categories: internal government supervision,external supervision by other state organs,and social supervision.This paper mainly studies the supervision from the other state organs with coercive power,that is,the supervision activities of the legislative organs,CPC discipline inspection and state supervision organs,and the judicial organs.The second section is a detailed introduction to the supervision of the legislature organs and CPC discipline inspection and state supervision organs,and puts forward relevant suggestions.According to the characteristics of the supervision of different organs,the legislature organs mainly play a role in supervising the rule-making power of the government securities regulation power,while the discipline inspection and supervision organs play a comprehensive and special supervision role in supervising both government securities regulation and self-regulatory power.The third section is about the supervision of the judiciary.The supervision to securities regulation powers is defined in a narrow explanation of judicial supervision,and also in a narrow explanation of judicial review,in which,supervision exerted through administrative litigation cases.In the case review,the judiciary found various situations in which the operation of securities regulation power was not open,unreasonable,and even illegal.However,in most cases,it was not corrected in time by the judgment.At present,the judicial supervision function is actually weak.This situation is also reflected in other judicial areas related to securities activities.However,taking Sujiahong case as an exapmle,it shows that in-depth trial of cases can often point out the causes of the operation of securities regulation powers and establish rules for correct operation.It is a better way to promote the rule of law in the securities market.Therefore,it is necessary to comprehensively strengthen the capacities of the judiciary,construct a financial court,establish a ‘three-in-one’ tribunal mechanism based on judicial review,and gradually strengthen the role of judicial supervision.Finally,from the perspective of the system development of securities regulation,the rationalization of power allocation,the balance of rights and obligations,the promotion of power constraints and rights protection are all issues that need to be further studied.As long as power and right subjects can actively participate in multi-governance,they can promote the realization of the rule of law and market-oriented development of the securities market.