The Professional Liability On Securities Regulations

Professional liability, one of the forms of civil liability, arises during the period of law-making trend for the protection of consumers on the 1960's & 1970's. Its purpose is to protect the weak party in obtaining information. The nature of professional liability is the focal point within the field of civil law or commercial law both theoretically and practically. As the specialists serve special roles in economic affairs from the aspects of verification and identification, when they infringe the counterpart's or general public interests, it appears troublesome to hold and find out their civil liability. Meanwhile, because of the asymmetric information that exist in securities market, as well as the legislative purpose of securities law which is to protect the public investors, the professional liability in the field of securities market becomes the focal point of legal regulations. The thesis explores some problems that might be encountered when professional liability is applied to securities regulations.Professional liability, from its first appearance in civil law to its application to securities regulations, has undergone two steps of transformations. At first, its compensatory object is changed from the counterpart of contract to the third party besides contract. Secondly, its nature is changed from the liability for breach of contract to the tort liability. The thesis analyses the professional liability application to securities regulations from the angle of above two transformations then rethinks rationally relevant provisions of our country's securities law that regulate professional liability. The coincidence of the professional liability is also under discussion.The whole thesis is divided into three parts. Part One introduces the background under which professional liability arises in civil law and the related theoretical problems. There are different opinions concerning with nature of professional liability between civil law and common law systems. After evaluating and examining the different legislative regulations and theories between the two systems, the author thinks that no matter from the aspect of constitution of liabilities or the protection of the infringed party, the professional liability in civil law should be regarded as tort liability rather than the liability for breach of contract. Under the premise of tort liability, the author analysis the subject of professional liability in order to lay down a solid foundation for its application to securities regulations.Part Two discusses the general elements of professional liability. By comparing the Chinese and American legislations related with securities, the author explores the problem from the following four aspects: the subjects, the principle of imputation, causation and holding criteria of tort. Then the author concludes that the subjects of professional liability only include the asset appraisal offices, accounting firms and law firms as well as the employees of above institutions, the specialists themselves should take the joint liability. The holdings of the fault and causation may carry out the principle of presumption; the specialists may raise the defenses to exempt from legal liability.Part Three takes the fruits of western securities law research as reference, combines them with the professional liability problem of our country, argues some special problems when professional liability is applied to securities law. They include the independent status of specialists, the exemption from professional liability, and the share of liability between specialist and other subject. The author thinks that the...