Research On The Tort Liability Of Law Firms In Securities Misrepresentation Case

In recent years,cases of misrepresentation in domestic securities market are frequent,and intermediary agencies play the role of "gatekeepers’ ’,whose civil liability is always the focus of academic research and judicial practice.As the first case of bond fraud issuance and the first case of intermediary agency being held accountable by the judicial system without administrative penalty,the judgment result of Wuyang Construction Bonds defaulting is controversial.Since the securities law of our country does not describe in detail the criterion of joint liability and diligence of intermediary agencies,with the conclusion of the second trial,the rationality of joint liability of intermediary agencies for the liability of issues and the boundary of liability have been discussed again,and the related issues of liability of law firms in cases of misrepresentation have been raised in this paper.This paper consists of four chapters,the first of which is to clarify the basic nature and principles of civil liability of law firms in cases of misrepresentation.By combing through the basic standard system of civil liability of misrepresentation law firm,this paper holds that misrepresentation should be characterized as tort and civil liability of misrepresentation law firm should be recognized as tort.The principle of attribution of tort liability of misrepresentation intermediary is the principle of presumption of fault and the principle of liability is the "rigid" joint and several liability.According to the existing theory and judicial practice,the joint and several liability should take into account two factors: fault and causative potency,and put forward three problems that the law firm should face in accepting tort liability.The second chapter mainly analyzes the fault of securities lawyers in the case of misrepresentation.In the case of misrepresentation,the level of fault of the lawyer should be divided into three levels according to the degree of his or her fault,namely,willful,negligent and having diligently performed his or her duties and still not found the misrepresentation.According to the empirical statistics of the law firms that have received administrative punishment in the last ten years,most of the lawyers’ faults are negligence,among which negligence is the failure to perform the necessary procedural matters and to exercise due diligence.The essence of a lawyer’s fault is a violation of the duty of care,and the judgment of the duty of care should adhere to objective criteria.It is necessary to distinguish the duty of special care from the duty of general care according to objective criteria.We should also consider the cause of exemption for the subjective liability of law firms,and establish a reasonable cause of exemption for the civil liability of law firms in our country by referring to the reasonable investigation defense and the expert defense in the securities law of the united states.The third chapter is to judge the strength of causative potency of the false statement by the law firm.Cause-force here refers to the power of misrepresentation by law firms to cause investor losses.Legal causation is used to determine whether the tort perpetrator should bear civil liability according to law and the scope of civil liability.The strength of causative potency is the embodiment of the degree of causeeffect relationship,and the judgment of legal cause-effect is the basis of judging the strength of causative potency.The key to the proof of legal causality is to judge the influence of intervening factors and to consider the predictability of the outcome of a law firm.The strength of causative potency of a false statement by a law firm is determined mainly by distinguishing the primary cause from the secondary cause.The judgment of principal and secondary causes mainly considers the fault of the joint and several liable person,the nature and importance of the act and the extent of the impact of the act on the range of the damage consequences.The reason strength judgment of law firm should mainly consider the particularity of law firm’s information output and its influence on the price of securities.The fourth chapter mainly demonstrates the problem of how the civil liabilility of law firms should be borne.The principle of civil liability of a law firm is joint and several liability.It is unreasonable that the securities law of our country does not distinguish the fault and take full joint and several liability.The establishment of a proportional joint and several liability system should be explored on the basis of judicial practice and extraterritorial experience.The distribution of proportional joint and several liability should also consider the size of fault and the strength of the cause,considering only that fault tends to lead to the unfair distribution of responsibility,considering only that the strength of the causative potency is conducive to the realization of distributive justice,but neglecting the real impact of fault.The fault size and the strength of causative potency should be considered in a comprehensive and equal manner and determined by weighted average calculation.At last,this paper puts forward some superficial suggestions to perfect the joint liability system of our country’s law firms.