| In recent years,the securities market in China has developed rapidly.The newly revised Securities Law has also come into effect in march 2020.One of the main focuses is the protection of investors’ rights and interests.In terms of investor protection,the new law has added special chapter on investor protection,which strengthens the information disclosure obligations of relevant information disclosure subjects,and greatly improves the liability for securities violations.Among them,the effective security advance compensation system in the illegal practice of securities is also listed in the provisions of legal level for the first time.Before that,the requirements of the recommendation institution commitment to pay in advance are made in the guideline for the content and format of information disclosure of Companies that issue securities publicly No.1 prospectus.The CSRC also stressed the sponsor institution to make the compensation in advance for many times The importance of the main body of the advance compensation.What is the nature of the advance compensation of the sponsor institution and how to effectively promote it is worth exploring.The first chapter of this paper makes a comprehensive review of the current situation of the sponsor institution’s advance compensation.It summarizes and sorts out the legislative development and practice.After sorting out the compensation effect,the corresponding administrative punishment,the implementation procedure and the follow-up disputes,this paper affirms the functional value of the advance compensation to protect the interests of investors,but also points out the problems existing in the current system construction,such as the unclear nature of the system,the low feasibility,and the insufficient protection of the rights and interests of the sponsor.Then,this paper puts forward the problems of unclear nature under the current system construction and the problems of lacking high feasibility and insufficient protection of the rights and interests of the sponsor institution.This paper proposes to improve the advance compensation system from the perspective of protecting the rights and interests of the sponsor institution.The second chapter analyzes the legal nature of the system of the advance compensation of the sponsor institution.After defining the liability basis of the sponsor institution and its liability in the false statement,the compulsory compensation alienates the legal liability of the sponsor institution from its liability nature.The liability for the first compensation should be different from the compulsory product liability,so as to clarify the necessity of voluntary compensation.The third chapter analyzes the reasons why the sponsor institution is difficult to compensate first.After the non mandatory compensation of the sponsor institution is clear,the problem is how to promote the sponsor to pay in advance.This paper explores the problems faced by the sponsor institution from the perspective of the protection of the interests of the sponsor institution.First,the main body of the first compensation is too heavy,and all investors with a wide range of compensation are paid by a single entity,and there is also the risk of repeated prosecution after accepting the first compensation.Secondly,the incentive mechanism of the sponsor is insufficient,and the compensation in advance is driven by the administrative liability reduction.However,in the current law enforcement practice,the standard of administrative liability relief is not clear,and there is no two-way restriction mechanism between the administrative counterpart and the administrative supervision department.Finally,it is difficult for the sponsor institution to pursue the compensation in the future.The effective right of recourse is the guarantee of the advance compensation.However,there are disputes about excess compensation,jurisdiction and priority in the implementation.The excess compensation should be borne by the first claimant from the legal principle,but other ways should be adopted to confirm the scheme of the first compensation.The jurisdiction dispute will increase the right of recourse It is not conducive to the unity of the referee to add unnecessary procedural burden.The fourth chapter is to put forward the perfect path for the above problems.First,the United States Fair fund system is introduced as the system mirror,and the similarities and differences between the fair fund system and the first compensation are compared and analyzed,and the experience of fair fund system is referred to based on the goal convergence.Secondly,this paper holds that the burden of the sponsor institution should be reasonably reduced,and the multiple parties should participate in the advance compensation together,and expand the function of investor protection fund as the supplement of the principal responsible party to the compensation in advance by referring to the fair fund system;meanwhile,reasonable limit on the scope of the investors is allowed.In addition,the exception in the compensation provisions of Hong Kong investors is referred to,and some institutional investors are allowed to be allowed to make compensation The enforcement of the compensation scheme is confirmed by the mechanism of litigation mediation and connection,which avoids the risk of repeated prosecution,and also ensures the feasibility of the scheme.Thirdly,this paper advocates strengthening the incentive mechanism of the sponsor institution to pay first compensation,clarifying the reduction range of administrative responsibility,and exempt the sponsor institution from qualification punishment for the independent sponsor institution which bears the responsibility of first compensation.Meanwhile,it realizes two-way restriction through the application of the administrative reconciliation system,and can take the administrative settlement fund into the priority compensation fund to pay the investors in priority.Finally,the establishment of the right of the sponsor to pay the first compensation is improved,the dispute over compensation is eliminated by the way of prior confirmation,and certain administrative incentive measures are taken for the prior confirmation.Meanwhile,the rules for determining the jurisdiction of the exercise of the right of recourse are clarified.Referring to the relevant jurisdiction provisions of the securities dispute representative litigation,the intermediate people’s court or special court with jurisdiction in the domicile of the issuer or the first compensation party shall have jurisdiction The people’s court shall have unified jurisdiction. |
