The Identification Of "diligent And Responsible" Securities Service Institutions

A securities service agency generally sign an entrusted contract with its client,asking it to be diligent and responsible for practicing,and provide professional advice.The relationship between them is a civil legal relationship.However,the rising dependence of the securities market on the professional opinions of securities service institutions has gradually highlighted its externalities.It triggered "strong supervision" of the administrative forces of the securities market focusing on Information disclosure.Since the amendment of the Securities Law,the number of cases in which the securities regulatory agency has imposed administrative penalties on the grounds of "dilution of securities service agencies" has gradually increased.Diligence has highlighted the use of "pocket clauses" There is the risk of over-regulation.In practice,clients,securities service agencies,investors,securities regulatory agencies,and professional regulatory agencies in the fields of law,accounting,and evaluation all have different views on the connotation and extension of due diligence,reflecting different interest considerations and values position.The professional opinions issued by the securities service institutions affect the interests of all parties in the securities market and break the relative restrictions of the entrusted contract.Therefore,they are given the role of a "gatekeeper" in the securities market.The basic premise and core system of the role of "gate".The clarification of the scope of diligence and due diligence is conducive to clarifying the intervention level and boundary of the securities regulatory forces and preventing the abuse of regulatory power.It can be seen from the existing punishment cases that the Securities Service Commission found that the securities service agency has not been diligent and due diligence.The Securities Regulatory Commission,securities service agencies,and clients have different understanding and recognition standards for due diligence.The problem of unity.The reason lies in that the supervisory thinking of the supervisory authority and the exercise of power are not clear enough,and that the securities service institution’s professional perception of its "private" subject contradicts the role of public law expected by the industry.The ambiguity of the supervisory agency’s supervisory thinking and professional self-awareness is fundamentally rooted in the suspicion that the securities service agency has set up due diligence and obligations in the Securities Law.The obligation of diligence and due diligence itself has a blurred abstraction.It changes from contractual obligations to legal obligations and gradually increases its legal liability,reflecting the characteristics of restricting private rights.Therefore,diligence and due diligence must be explained as the legitimate basis for securities legal obligations.The legitimacy of securities regulatory agencies in investigating and hearing the failure of due diligence of securities service agencies is based on the rule of law that guards against absolute power.In securities supervision,it is determined that diligence and due diligence should abide by the principle of fairness,regulate the external intervention of administrative forces in the activities of securities service institutions,and refer to the principle of proportionality to ensure that the penalties for administrative penalties are equal.The rule of law requires that the discretion of the securities regulatory agency must be based on legal norms,and the enforcement of the law must be consistent.The normative explanation of diligence and due diligence is helpful to sort out the logic of determining the stability of securities regulators.The practice activities of securities service institutions are a subjective reflection of the objective process,and provide a "high but not absolute" guarantee for the professional opinions they issue.Therefore,the diligence and due diligence clauses have the normative attributes of relativity,dynamics,and procedures,stipulating that securities service institutions have the obligation to verify and verify the authenticity,accuracy,and completeness of the information documents based on,and to issue professional The obligation to report authenticity,accuracy and completeness.The diligence and due diligence in securities supervision takes the pursuit of procedural truth as the main standard and follows the policy-based reasoning logic model of "cause-and-effect" to ensure the stable expectation of the legal consequences of securities service institutions on their professional behavior.Clarifying the basic principles and normative basis for diligence due diligence of securities regulatory agencies will help improve the current logic of securities supervision and the applicable methods for diligence due diligence.Securities regulators should respect the market laws,effectively utilize the self-restraint mechanism of securities service institutions’ credit asset accumulation,be alert to the power expansion tendency of penetrating supervision of the securities market,and consider the interest containment when securities service institutions play the role of "gatekeeper" in the securities market Realistic difficulties,upholding a basic attitude of trust and prudence in supervision.In securities supervision,the court can refer to the court’s determination of the diligence and due diligence of securities service institutions,and apply laws from the perspectives of subjective mentality,objective behavior,division of responsibilities,and evidence support based on the normative procedures.At the same time,in order to ensure the flexible use of due diligence and ensure the justice of individual cases,securities regulators can establish rules communication mechanisms with industry associations,and can also establish a platform for inspection information sharing between regulators,supplementing more details of due diligence through regulatory coordination.