Securities Intermediary False Statement Civil Responsibility Study

The securities intermediary institutions such as the sponsor,accounting firm and law firm are the main participants in the securities market,acting as a "gatekeeper" to the securities market,acting as a bridge between financiers and investors,and relieving asymmetric information between the issuer and the investors.With the implementation of the new Securities Law in 2020 and the frequent occurrence of securities misrepresentation cases,it has become a social consensus to compact the "gatekeeper" responsibility of securities intermediaries.In securities misrepresentation,the judicial judgment has been trying to promote the realization of the functions of securities intermediaries through strict civil liability.However,strict civil liability for compensation is not the only reliable incentive way,nor may it effectively eradicate securities misrepresentation.Too extensive and severe civil liability is likely to cause securities intermediaries to fall into the "collective action dilemma".The shrinkage of the securities services industry is contrary to the purpose of protecting investors’ rights.This thesis first clarifies the basic concept of securities intermediaries,the role positioning of securities intermediaries,the theory of "gatekeepers" of securities intermediaries,and analyzes the composition of civil liability for misrepresentation by securities intermediaries and the value objectives of securities intermediaries bearing civil liabilities.Secondly,the author studied the civil liability of intermediaries in securities misrepresentation from two aspects of legislation and judicature,and sorted out the legal regulatory documents related to securities intermediaries.Many regulatory documents have provisions on securities intermediaries,but the provisions on civil liability of securities intermediaries in regulatory documents are relatively vague and abstract,without detailed and specific explanations.Through the "Peking University Legal and Italian Empirical Analysis Platform",we obtained the data on the judicial adjudication of securities misrepresentation in recent five years in China,briefly analyzed the number and characteristics of securities misrepresentation cases,and then combined with 20 judgments,we analyzed the risks of securities intermediaries and summarized the common risks of securities intermediaries.Then it makes case analysis on "Xintai Electric Series Case" and "Wuyang Construction Case" which have great social impact in recent years,and draws some deficiencies in judicial adjudication.Thirdly,on the basis of the previous analysis,the relevant issues of civil liability for misrepresentation of securities intermediaries at this stage are further summarized,one of which is the ambiguity of the standard of diligence.First,the standard of diligence is vague.The fuzziness of the standard of due diligence lies in the generalization of the legal provisions on the duties of securities intermediaries,the unclear boundaries between the intermediaries,the unclear terms such as "prudential verification","full investigation","special duty of care" and "general duty of care",which are often used in relevant legal documents,and the insufficient analysis and demonstration of judicial decisions on the lack of due diligence.The second is the broad basis for the division of civil liability of securities intermediaries.The current legal norms only stipulate that the civil liability of securities intermediaries should match the tort and the degree of fault,but there is no specific operational guidance.Based on the two problems mentioned above,countermeasures and suggestions are put forward.First,in view of the problem that the standard of due diligence is vague,in order to achieve the clarity of the standard of due diligence,this thesis proposes measures to clarify the nature and content of due diligence,the scope of liability of securities intermediaries and the standard of duty of care.Second,in view of the broad basis of civil liability division,in order to achieve the refinement of the basis of civil liability division,this thesis proposes the primary and secondary division of liability under cross reference,Comprehensively consider fault and causal forces,as well as countermeasures that set limits of liability in different ways,in order to promote justice in judicial decisions.Finally,it concludes on the civil liability of securities intermediaries for misrepresentation,pointing out that judicial judgments should escort the stability and long-term development of the securities market,not only to protect the legitimate rights and interests of investors,but also the legitimate rights and interests of securities intermediaries.The judgment of intermediary agencies in securities misrepresentation shall be properly determined under the principle of equal fault.