On Civil Liability For Misrepresentation In Securities

Since the Beginning of China security market new founded, the legislation for formalize market and punish illegal behavior are processing continually. But till today, most of the law, statute and regulations only prescribed administrator liability and criminal liability, the civil compensation liability haven't receive proper attention at all. Although the security law have some prescript on the civil liability system, but most of the time the criterion of civil liability only act as announcement, it is hard to put in practice in reality. It is obvious to all about the result cause by the missing of civil liability system in china security law. However, it is cheerful that this serious problem have receive highly attention of the Central Committee of CCP and the State Department. They have issued several criterion document, and the supreme court have issued related justice interpretation. It is reasonable to believe that those laws and regulations will benefit to healthy development of future china capital market. But it is still need depth research to consummate china security civil liability system by legislation.Chapter 1 The Criterion of Fake Statement in the Security Market Normally the legal liability of security market involve with criminal liability, administrator liability and civil liability. As private law liability, the main function of civil liability is adjust the property transfer and right distribution between civil object in abnormal status, the purpose of it is restore and relief the damaged civil rights of civil object. The function of security market civil liability include compensate function, punishment function, prevention function and supervision function. The civil liability object of fake statement in the security market is certain, the behavior taken place during the process of carry out security market mandatory information unveil obligation, it's model is multiform, and it violated legal liability obligation instead of promissory obligation. The fake statement in the security market civil liability belong to right-violation compensation liability.Chapter 2 The Object of Fake Statement in the Security Market There are kinds of object take part in security market, e.g. the initiator, the issuer, the inner personnel of issuer (e.g. director, warden, manager and other high leveladministration staff), the referral of come into market (referral organization and referral representation), kinds of professional organization and it's stuff, and so on. Whether or not the fake statement of all above organization or personal can be treat as "fake statement in the security market", thereby be charged with the fake statement right-violation liability according to the security law? We should clear the commonness and difference between the fake statement behavior of security law special regulation and fake statement behavior of right-violate law common regulation. In fact, the law advance country like USA, British, Japan and Germany have make rule on fake statement right-violate damage compensate liability of certain security market object in the security legislation. Even in china security legislation which is shortness in civil liability system, some laws like "security law", the "temporarily administration statute on stock issue and trade" have make solely rule on compensation liability of right-violation for fake statement to some special objects such as issuers, security salesmen, some professional organizations and so on. This fact indicate that there are commonness and difference between fake statement in the security market and fake statement in the common market. Just because of those difference, it is necessary make special prescribe by security law.Chapter 3 The Component of Civil Liability for Fake statement in the security marketDamage is one important component of right-violation because of the principle that "no compensation no damage" and that main function of civil compensation liability is to compensate the victim instead of to punish the lawbreaker. In civil code, damage prefer to the damage to someone's right which is protected by the right-violation law. During constructing the civil liability system for fake statement in the security market, we should abandon old relation between reason and result in the current right-violation code, that is to say, we should make the difference of the between code causal relationship and reality causal relationship. And properly reform according to china security mark feature reference to the legislation and judicatory experience of security market advance country especial USA. Gaffe, including intent and demerit, is just one paralyzed component with behavior, damage consequence and causality in modernright-violation law. Some damage compensate liability require this component, and some not. There isn't any necessary to elevation this component to the status as high as causality principle, because of it is the damage instead of the gaffe make behavior object be charge of the liability.Chapter 4 the litigation implement mechanism of fake statement in the security market civil liabilityThe period of litigation validity of the fake statement civil in security market compensation case for apply to the common litigation validity period in civil code, which is two years. The case accounting period of litigation validity have to join with previous litigation process, which begin with the day that the investigation result had announced, that is to say, the beginning day varied with assorted investigation result. Compared with common civil litigation case, the fake statement civil compensation case has 3 features, which are centralized administration, comply with the principle of "prefer to defendant address" and preferred special defendant. The litigation form include solo litigation, together litigation and common litigation in the theory framework of civil litigation code. The civil dispute of fake statement in the security market is characterized common dispute, which have lots of objects for the plaintiff and defendant, especially for the plaintiff, which are composed of plenty of objects. As the result, it is difficult to adopt the solo litigation form in the litigation practice. Concluded, we can only adopt the common dispute resolve mechanism in order to smoothly accomplish the civil litigation in the security market and make the best of the civil compensation system in the security market.