| In order to meet the needs of the internationalization of China’s capital market and adhere to the market-oriented and the rule-of-law market economy reform,the Securities Law of the People’s Republic of China(revised in 2019),which was deliberated and adopted on December 28,2019 and formally implemented on March 1,2020,added the fourth paragraph of Article 2,which stipulates that "offering and trading of securities outside the People’s Republic of China which disrupt the domestic market order of the People’s Republic of China and harm the legitimate rights and interests of domestic investors shall be dealt with pursuant to the relevant provisions of this Law,and legal liability shall be pursued" This provision is also known as the extraterritorial jurisdiction clause of China’s securities law.Although the extraterritorial jurisdiction clause breaks through the territorial restrictions of China’s securities law,it is still a declarative clause and needs to be specified.Therefore,it is the necessary way to improve the extraterritorial jurisdiction of China’s securities law to study and analyze the experience and practices of other countries.This paper intends to analyze and discuss the practical experience of the extraterritorial jurisdiction of the U.S.courts,which is the origin of the extraterritorial jurisdiction system of the securities law.Considering the actual situation of our country,we can selectively draw lessons from it and expand the extraterritorial jurisdiction of the securities law of our country to a reasonable extent,so as to meet the development needs of the current securities market of our country.The main body of this paper is divided into four chapters.Chapter One is the international law theory of the extraterritorial jurisdiction system of securities law.This chapter starts with the concept and theoretical classification of extraterritorial jurisdiction and extraterritorial application of law,defines the extraterritorial jurisdiction in private international law,and limits the scope of this paper to the extraterritorial jurisdiction of courts.Then,a distinction is found between the extraterritorial jurisdiction and the extraterritorial application of law,that is,the former is about procedural law,while the latter is about extraterritorial effect of domestic law.These are two independent issues and two successive steps.Therefore,the extraterritorial application of law and the extraterritorial jurisdiction of the court should not be confused.Secondly,this chapter discusses the development and social basis of the extraterritorial jurisdiction system of securities law.The extraterritorial jurisdiction of law originated in the field of economic law,which has a profound political and economic basis.The economic foundation is reflected in the increasing internationalization of the securities market under the trend of economic globalization.In order to obtain greater economic benefits,a large number of multinational companies are listed in many countries,which brings complex cross-border securities crimes.Political factors are the fundamental consideration for the formation and development of extraterritorial jurisdiction system of securities law.In order to protect its overseas interests and economic development needs,a country often applies its own laws to overseas activities,trying to establish an international economic legal order beneficial to its own country,which will inevitably lead to conflicts in the jurisdiction of the securities laws of various countries.Chapter Two is the theory and practice of the extraterritorial jurisdiction of American securities law.The second part of this paper first introduces the framework of the extraterritorial jurisdiction system of the U.S.Securities Law,which is a complex legal system with the Federal Securities Act of 1933 and the Securities Exchange Act of 1934 as the main pillars,supplemented by state legislation.However,because the above-mentioned legislation does not specify the scope of extraterritorial jurisdiction of U.S.Securities Law,the extraterritorial jurisdiction system of U.S.securities law mainly relies on the precedents of federal courts.Among them,the second circuit court of appeals,as the representative,first proposed the "effect standard","behavior standard" and "effect behavior standard" as the starting point of the standard of extraterritorial jurisdiction.In 2010,the U.S.Supreme Court reflected on the traditional "effect standard" and "behavior standard" and established the "transaction standard" for the first time in the Morrison case,limiting the application scope of U.S.Securities Law in foreign-related private litigation.However,section929P(b)of the Dodd Frank Act,which was subsequently passed by the US Congress,retraces the "effect standard" and "behavior standard".This paper also analyzes the debate caused by the conflict between this Act and the Morrison case,and recognize that the Act does not actually overturn the "transaction standard" of the Morrison case,but only endows the American court with a subject matter jurisdiction in public law proceedings.For private litigation,the court can exercise jurisdiction only after the case meets the "transaction standard".Finally,this paper also pays attention to the latest judicial practice of the U.S.courts after the announcement of the Morrison case judgment.It is found that most courts still follow the "transaction standard" established by Morrison case,while the "effect standard" and "behavior standard" reshaped by Dodd Frank Act have not been applied for the first time until Scoville case in 2019.To sum up,the United States,which has the highest degree of nationalization of the securities market,has formed a relatively complete system of extraterritorial jurisdiction of domestic securities law after years of development and evolution.Although in the judicial practice of U.S.courts,the applicable standards for extraterritorial jurisdiction of securities law are constantly changing,its fundamental consideration is how to maximize the fundamental interests of the United States.The extraterritorial jurisdiction system of securities law established by the judicial practice of the United States has a high degree of protection for domestic investors and securities market,which is worth learning from in many aspects.Chapter Three is about the extraterritorial jurisdiction system in civil litigation jurisdiction of China’s securities law.This part first gives an overview of China’s foreign-related civil litigation jurisdiction system,and gives an overall introduction to the background and specific provisions of the extraterritorial jurisdiction system of the securities law.The introduction of extraterritorial jurisdiction provisions in the new securities law reflects the change of China’s securities law from a simple "public law" to a "private law" that takes into account civil liability,which is also the basic requirement for China to establish an extraterritorial jurisdiction system of domestic law with Chinese characteristics and actively defend China’s overseas interests.Then,this part describes the current status of the litigation jurisdiction system of foreign-related civil disputes of China’s securities law,and points out the following deficiencies in the current jurisdiction system: the protective jurisdiction are weak,the jurisdiction procedural clauses and the extraterritorial provisions of substantive law cannot be effectively linked,and the trigger standard of extraterritorial jurisdiction is uncertain.In short,although China’s civil procedure law provides some normative guidelines for determining the jurisdiction of foreign-related securities civil cases,the overall provisions are relatively weak and scattered,unable to effectively link up with the substantive law,and there is still a certain gap between China’s civil procedure law and the establishment of a complete legal system of extraterritorial jurisdiction of securities law.Chapter Four is the suggestions to improve the extraterritorial jurisdiction of China’s securities law.This part mainly puts forward four suggestions on improving the extraterritorial jurisdiction system of China’s securities law.First of all,we should improve the supporting provisions of the extraterritorial jurisdiction provisions of the securities law.At present,the extraterritorial jurisdiction provisions of China’s securities law are still declarative.On the one hand,its literal expression is similar to the "effect test" of the United States,and its jurisdiction is relatively broad.On the other hand,its provisions on trigger conditions are relatively general,which is not conducive to practical application in judicial practice.Secondly,we should try to build a complete rule of jurisdiction of foreign-related civil litigation in securities law.Specifically,the corresponding measures include: establishing the judicial concept of active jurisdiction,giving play to the role of protecting jurisdiction,and establishing the jurisdiction procedure provisions that link up with the extraterritorial provisions of the securities law.Also,we should give full play to the initiative of China’s courts in the jurisdiction of foreign-related civil cases in securities law,including: focusing judicial resources on foreign-related litigation that has a direct and substantial impact on China,focusing on the cases with international influence,and actively carrying out international private law cooperation.Finally,to expand the extraterritorial jurisdiction of securities law,we should pay attention to reasonable limits and respect the principle of international comity.To start the extraterritorial jurisdiction,we need to be cautious rather than generalization,so as to avoid the waste of judicial resources in our country.To sum up,due to the differences in political,economic and cultural backgrounds between China and the United States,there are inevitable differences in the legal system and regulatory framework of the two countries.When improving the extraterritorial jurisdiction system of securities law,China should not copy the experience of the United States,but should selectively learn from China’s actual situation,and expand the extraterritorial jurisdiction of China’s securities law to meet the needs China’s current economic and market development needs. |
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