On The Construction Of Extraterritorial Application System Of China’s Securities Law

The exposure of the "Ruixing coffee financial fraud case" has aroused the attention and extensive discussion in the domestic academic circles on whether it can be applied to the fourth paragraph of Article 2 of the securities law of China.The improvement and implementation of the extraterritorial application legal system of the securities law has become an unavoidable practical problem in China.Whether its direct extraterritorial application or indirect extraterritorial application reflects the international "sharing" and dynamic development of financial regulatory power in relevant countries or regions to varying degrees.It can be said that the extraterritorial application of the securities law essentially belongs to the problem of the balance and redistribution of the financial supervision power across countries and regions,and solves the problem of the ownership of the financial supervision power among the relevant countries.Therefore,exploring the essence and attribution of the extraterritorial application of securities law in the implementation is the starting point of this paper.From the perspective of ontology research of securities law,the dual structure attribute of securities law can be used as an analytical framework and tool for the extraterritorial application of China’s securities law.On the one hand,the securities law is a legislative paradigm integrating the contents of public and private laws,with the dual characteristics of the exercise of public power and the protection of private rights.This determines that in the process of extraterritorial application,it also has the characteristics of dual structure of public and private law;On the other hand,the "foreign-related" nature of the extraterritorial application of the securities law extends the domestic law to be applied outside the territory of the country,breaking through the limitations of the territorial principle of traditional international law.This has weakened the financial regulatory power of other countries or regions to a certain extent,and inevitably led to regulatory conflicts with relevant countries or regions.It can be said that the extraterritorial application of securities law will show the dual legal characteristics of domestic law application and cross-border coordination.It is a typical composite legal problem of the interweaving and integration of domestic law and international law.Therefore,when studying the institutional endowment of extraterritorial application of securities law,China needs to take into account the integrated development of domestic securities rule of law and the coordination of international rules.Combined with the actual situation of the current domestic development,the development of relevant domestic legislation,the extraterritorial law enforcement ability of regulators and the trial level of financial litigation of judicial organs are the main factors restricting the development of extraterritorial application of China’s securities law.It can be said that the above factors directly determine the extraterritorial application ability and development level of China’s securities law.These factors are scattered in the dynamic implementation space of the extraterritorial application of the securities law,inducing the formation of the dilemma of the extraterritorial application of the securities law in China.On the one hand,the limited internal transmission of legal uncertainty leads to the uncertainty of the implementation of the law on the extraterritorial application of the securities law,which leads to the uncertainty dilemma of the extraterritorial application of the securities law,resulting in the slow or zero application of the extraterritorial application of the securities law.On the other hand,the authority of extraterritorial law enforcement and the professionalism of financial trials require further mapping and amplification of the defects and deficiencies in the extraterritorial application of China’s securities law.At the same time,the intensification of regulatory conflicts and the absence of appropriate relief procedures accelerate the formation of the legal implementation dilemma of extraterritorial application of securities law.As for the uncertain dilemma of the extraterritorial application of the securities law,China needs to clarify the legal recognition standards of the extraterritorial application of the securities law,and clarify the specific recognition ideas and recognition rules on the "access conditions" of the extraterritorial application of the securities law,so as to further improve the certainty of the extraterritorial application of the securities law.In the reference system of the criteria for determining the extraterritorial application of the securities law,the United States,as the founding country of the extraterritorial application of securities law,is famous for its standardization and rich practicality of identification,so its development practice is taken as the main background and reference sample.In terms of specific identification ideas,first of all,China needs to identify the jurisdiction and jurisdiction basis of extraterritorial application of the securities law through the effect standard,and then limit and supplement the application limit of the effect standard through the principle of reasonableness.The reasonable limit of "effect" should be that the illegal activities of overseas securities have had a substantial and serious impact on China’s domestic market or investors.Secondly,China also needs to systematically investigate this "effect" in domestic and foreign securities markets to ensure full respect and balance for the interests of relevant countries or regions.In addition,when the effect standard produces uncertainty and fuzziness,we can consider the supplementary identification of the extraterritorial application of securities law through the behavior standard derived from the principle of reasonableness.Finally,the development of the extraterritorial application of China’s securities law needs to "break the shackles" and explore the establishment of a localized recognition standard system of extraterritorial application.This is an important connotation and feature of the extraterritorial application of China’s securities law to maintain the competitiveness of the system and the vitality of the securities market,which needs to be paid enough attention.For the dilemma of the extraterritorial application of the securities law,China needs to establish corresponding special implementation procedures for the specific implementation links,clarify and improve the specific implementation content of the extraterritorial application of the securities law,and increase the operability of the extraterritorial application of the securities law.From the perspective of external characteristics,the special implementation procedure of extraterritorial application of securities law has the characteristics of combining hardness with softness and hardness.In terms of content,the special implementation procedures specifically include the implementation of the legislative power of extraterritorial application of securities law,extraterritorial law enforcement and cooperation,judicial protection of cross-border private litigation,and appropriate relief and defense procedures.Specifically,first of all,China should establish the leading position of extraterritorial law enforcement and cross-border securities private litigation in the process of improving the legislation related to extraterritorial application,and enrich the legal rule system of extraterritorial application of securities law through the improvement of the basic law and the supplement of subordinate law.Secondly,build an extraterritorial law enforcement and international cooperation system with the allocation of law enforcement power as the core,and enhance the extraterritorial law enforcement and international cooperation capacity of regulators.Thirdly,by reshaping the functions of judicial organs and improving the procedures of cross-border securities private litigation,we should strengthen the judicial protection of the extraterritorial application of securities law to private litigation.Finally,as an unconventional and reserve law enforcement content,China needs to explore the establishment of a reasonable relief and defense procedure based on conflict coordination and supplemented by prudent counter-measures.In essence,the focus and core of the extraterritorial application of securities law lies in the effective application and implementation in practice.In the dynamic implementation of the extraterritorial application of securities law,the effective cooperation and coordinated development of legislation,law enforcement and judicature is very important.In the process of exploring the identification and implementation of the extraterritorial application of the securities law,China may be able to gradually expand the system outline of the extraterritorial application of the securities law in practice,that is,to build a legal system of extraterritorial application of the securities law with "hardness and softness,multiple participation and clear rights and responsibilities" centered on the implementation dimension.From the perspective of pragmatism,this system can not only alleviate the dilemma of the current extraterritorial application of securities law,but also provide a new development idea for China’s participation in the governance of the international securities market.To sum up,the effective implementation of the legal system of extraterritorial application of securities law requires effective communication and joint efforts between the countries and regions involved,as well as the support and recognition of the international community.Therefore,the extraterritorial application of securities law needs the connotation of rule of law to increase its institutional certainty and realize the rational development of rationalization and regularization.This needs to complete the following two changes: first,the change of values,that is,internalizing the interest driven application motivation into the rule driven value goal,forming a rule-oriented application drive core.The second is the change of concept,that is,from unilateral application of securities law to bilateral or multilateral international cooperation.