| On January 21,2022,the Supreme People’s Court issued Several Provisions on Hearing Civil Compensation Cases for Misrepresentation Infringement in the Securities Market.The judicial interpretation system summarized many problems in judicial practice of securities misrepresentation,and formulated new regulations,indicating that investors in the securities market have more perfect legal weapons to safeguard their legitimate rights and interests.False statement is one of the typical illegal acts in the securities market.China’s law stipulates that intermediaries should bear joint and several tort liability,but there is no systematic provision on how to allocate tort liability.Although there are some cases in practice,they cannot be applied uniformly.As the "button" of the operation of the securities market,intermediaries play an important role in securities trading activities.If the intermediary is not properly accountable,it may affect the effective allocation of capital,or affect the rights and interests of investors and the normal operation of the market.Therefore,it is necessary to reasonably allocate the civil liability of intermediaries.This paper mainly studies the rules and identification of the responsibility distribution of intermediaries.This paper is divided into five parts.The first part discusses the purpose and significance of group research,the research status at home and abroad,as well as the research content and methods.The securities market has its special operating characteristics.Refining the distribution system of false statement responsibility of intermediary institutions and clarifying the rules of responsibility distribution can not only safeguard the legitimate rights and interests of investors,but also balance the interests of various institutions.There has been research on this issue in China for a long time.In recent years,the promulgation of the new securities law and the release of the new judicial interpretation have made the discussion more heated.The topics of the research include the idea of identifying the liability of intermediary institutions for false statements from a macro perspective,and also explore the legal provisions and practical application from the subtle aspects such as the causal relationship of loss,the connotation of the duty of diligence,the defense of intermediary institutions,etc.This paper will look for the path of intermediary liability identification from a macro perspective,draw lessons from foreign legislative provisions,and put forward suggestions for existing problems.The second part discusses the basic concepts of the identification of false statements of intermediaries.It mainly introduces that the word "misrepresentation"originated from Britain and developed in the United States.In China,misrepresentation first appeared in the regulations issued by the State Council in 1993,and then extended the dispute between narrow sense and broad sense.In 2022,the new judicial interpretation re identified misrepresentation.False statements can be divided into four illegal types,including improper disclosure,false records,misleading statements and major omissions.Intermediary institutions are divided into sponsors and securities service institutions according to the legal classification of our country.Sponsors are mainly recommendation representatives and recommendation companies.China is engaged in recommendation work for recommendation companies.Securities service institutions mainly introduce law firms and accounting firms,and elaborate their functions and roles.Finally,it introduces the evolution of the historical recognition rules of intermediary liability in China and the defects of the recognition rules at this stage.The third part discusses the path of intermediary responsibility identification.Mainly from the fault,causality,experts and non experts to explore the process of responsibility identification and how to determine the size of responsibility.Subjective fault mainly includes intentional and negligent cases,while the intermediary intentionally constitutes joint infringement with the issuer and bears all joint and several liabilities;The determination of negligence is more complex,which is divided into serious negligence and general negligence.The degree of negligence varies,and the determination of responsibility also changes.Causality is divided into transaction causality and loss causality.The constituent elements of each causality are different,but they are all important factors in identifying the responsibility of intermediaries.Causal force is an important concept in causality.The magnitude of causal force acting on the result affects the difference of responsibility.Although the fault of experts and non experts is under the fault,it leads to the particularity of obligations due to the particularity of the subject.The identification of expert fault and non expert fault lies in the difference of duty of care,which also greatly affects the size of tort compensation.The fourth part discusses the extraterritorial legal system,mainly discusses the intermediary responsibility identification system in the United States,Japan and Chinese Hong Kong,in order to find reference for our country.U.S.law stipulates that"distinction system",that is,to distinguish subjects,has different review obligations for different sources of information identified by different subjects.In practice,the"sliding liability" is applicable.According to the different degree of participation of each subject in the preparation for issuance and listing,the degree of strictness of its audit obligations is also different.This is the practical application of the differentiated liability system,which gives judges greater discretion.Japan has not made too many provisions and set up complex procedures for the identification of the responsibility of intermediaries,and only stipulates that there is no intention and negligence and that they have fulfilled their own responsibilities for the defense of intermediaries.In Chinese Hong Kong,the sponsor takes the lead,which is of great significance to China.Due to its historical particularity,Hong Kong has been seeking institutional reform.The most influential case is the Hong Liang international fraud case.We should strengthen the responsibility of sponsors and strive to make sponsors"return to their places and fulfill their responsibilities".The fifth part puts forward corresponding suggestions for the current problems in our country.It is necessary to clarify the responsibilities and exemption requirements of intermediary institutions in law to avoid shifting responsibilities or aggravating the responsibilities of intermediary institutions.After clarifying the responsibilities,we can determine the content of the duty of diligence and due diligence of each intermediary,which is the core of determining whether the intermediary infringes.The different degree of due diligence of the duty of care also affects the difference of responsibility.At the same time,we should optimize the way of assuming responsibility based on the principle of "joint and several liability".Although the law of our country stipulates the way of assuming joint and several liability,it does not specify all or part of joint and several liability.Some scholars even propose that proportional liability can also be applied in the case of false statement liability.The law should refine the way of responsibility and give some legal support to the practical judgment.Secondly,although the new judicial interpretation has new specific provisions on fault and causality,there are still new problems.For the identification of fault and the application of different provisions,it is still necessary to refine the situation and make detailed provisions.Causality should also clarify the different terms applied in specific situations,and some obvious infringement acts should be stipulated in the law.Finally,investors have various relief channels for misrepresentation.The law should take into account the relief of other channels to avoid repeated or differential relief.Different departments should strengthen coordination and jointly discuss diversified and comprehensive relief methods to protect the rights and interests of investors. |
