Research On Representative System Of Securities Dispute Litigation

The promulgation of the new "Securities Law" has made breakthroughs and innovations in the civil litigation representative system.The dual-track parallelism of special representative litigation and ordinary representative litigation is a prominent feature of the securities dispute litigation representative system.In response to the actual needs of the management of group disputes in the securities market,the Supreme People’s Court and the Shanghai Financial Court have issued judicial interpretations and regulations on the representative litigation mechanism for securities disputes,further enriching the content of the securities dispute litigation representative system.How to ensure the dual functions of remedy and deterrence,how to improve program design to coordinate the application of the two litigation methods under the dual-track system,and how to fully ensure the fair performance of their duties are inevitable issues during the period of institutional reform and exploration.Previous studies have criticized the practical problems of the legal authority and status of representatives that have been put aside by the Civil Procedure Law,the low application rate of representative litigation with uncertain numbers,and the unsatisfactory efficiency of dispute resolution,and pointed out the functional limitations of various representative litigation systems.The current legislation solves one or two of the above problems,but it also creates new barriers to the application of the system,such as concerns about the fair performance of litigation representatives and doubts about the coordination of the dual-track system.Clarifying the value orientation of the system,sorting out and summarizing the obstacles existing in my country’s current securities civil litigation representative system,will help analyze the root causes of the system obstacles and put forward corresponding countermeasures and suggestions.The first chapter examines the history of securities dispute litigation representative system.The securities dispute litigation representative system is in its own way in the group litigation model,which is different from the separate litigation,joint litigation and litigation agency systems.Special litigation representatives are a new type of litigation representatives,and form a dual-track representative litigation structure with ordinary representative litigation.Article 95 of the new "Securities Law" breaks through the relevant provisions of the "Civil Procedure Law" regarding an indeterminate number of representative litigation,and gives new era connotations to litigation representatives under the securities dispute litigation representative system.It is necessary to re-understand the special litigation representative from the subject qualification and the source of rights.The use of the representative system in securities dispute litigation reflects the deterrent effect of the special representative litigation system and is also one of the ways to improve trial efficiency.The formation path of judicial value and efficiency value is different,and both values are affected by system participants,program design and litigation mode.The second chapter analyzes the current "Civil Procedure Law" and "Securities Law" as well as relevant judicial interpretations and local court regulations,and estimates the obstacles that may be faced by the construction of the system in combination with previous cases of collective disputes in securities.First,the selection stage is affected by traditional litigation concepts and lack of experience in system construction,and the fairness of representatives cannot be guaranteed.Second,the procedure lacks a code of conduct for litigation representatives,which is prominently manifested in the three major problems of unclear right to choose a case,insufficient protection of the right to know,and limited supervision channels.Third,the lack of rules for the replacement of litigation representatives affects the continuity and consistency of the representative’s performance of duties during the litigation period.Fourth,procedural integration is unbalanced,and there is insufficient prevention of risks that may be caused by the withdrawal mechanism,withdrawal procedures,and the effectiveness of the adjudication,which weakens the system’s effectiveness in dispute resolution.The third chapter analyzes the root causes of the obstacles to the representative system in securities dispute litigation.The excessive pursuit of litigation efficiency to make up for the difficulties of traditional representative litigation reflects the value imbalance of the abnormal value of efficiency and the lack of justice value.Because the program design weakens the representative’s supervision mechanism and incentive mechanism,the public value protection of the system is not effective.This value orientation is not conducive to the formation of a benign order in which the program subject is clear and the responsibility is self-sufficient.Therefore,the balance of justice value and efficiency value is important Construction is necessary.As the medium of communication between system and value,actors are the core of resolving value conflicts and realizing value balance.The theory of structural duality provides feasible ideas for balancing the value.Taking into account the two methods of supervision and incentives can optimize the responsibility system of the main body of the procedure,clarify the powers of judges,and urge the effective progress of the procedure and the fair performance of the representative.The fourth chapter proposes suggestions on the improvement of the representative system of securities dispute litigation based on the balanced thinking of the coexistence of supervision and incentives.In terms of the procedures for the selection and appointment of representatives,improve the rules for the conversion of ordinary litigation representatives and special litigation representatives,clarify the selection rules,status and qualifications of representatives;in the supervision procedures,clarify the selection criteria,standardize the announcement and notification procedures,and Protect the representative’s right to object;in terms of replacement procedures,the rules for the replacement of representatives in the case of voluntary withdrawal and revocation of qualifications are divided;in terms of procedural convergence,promote the docking of representative litigation with reconciliation,demonstration litigation,and advance compensation systems.