Research On Liability Form Of Negligent Security Service Institutions In Misrepresentation Cases

The new Securities Law implements the registration system of securities issuance in the securities market.The authenticity of information disclosure will become the top priority of the issuance registration system.In the context of this reform,the securities service institution will play the role of “gatekeeper” of the securities market,guarantee the authenticity of information disclosure and select companies with high investment value.However,the frequent occurrence of securities misrepresentation shows that it is not necessary for securities service institutions to assume excessive responsibility which is inconsistent with their own role as the auxiliary person of issuing information disclosure.Excessive accountability could lead to improper incentives.It is necessary to reconsider the liability form of securities service agencies.The information disclosure of the securities market needs to be carried out by multiple subjects,so the loss of investors caused by false statements is essentially a multi person infringement.Based on the different kind of faults of securities service institutions,the misrepresentation behavior may present different ways of multi person tort,which leads to different forms of liability undertaken by securities service institutions.there is no doubt that securities service institution intentionally helps the issuer to make false statement documents,which leads to investors’ loss,should assume jointly and severally liability.However,this situation is only an individual phenomenon in practice.Whether it is the original situation of the securities law or most of the cases in reality,the securities service institutions have made false statements based on the negligence,leading to the loss of investors who rely on those disclosure information.The determination of liability form can not be separated from the two dimensions of the scope of external responsibility and internal sharing.The internal share of liability includes the share of internal responsibility and the burden of internal procedures.It is necessary to consider the dynamic balance between multiple factors,such as fault and causal force,in order to achieve distributive justice.In order to solve the shortcomings of traditional liability forms,in recent years,Partial joint and several liability,which is a new form of liability,has gradually been discussed by scholars around the world.After the promulgation of the Tort Liability Law,it has received the attention of Chinese scholars.After considering the theoretical basis and institutional value of partial joint and several liability,this paper proposes that partial joint and several liability can be applied in the cases of misrepresentation introduced by fault securities service institutions.The specific system construction is as follows: First,the issuer,as the ultimate responsible person,shall be liable for the damages caused by all false statements,and the securities service institution shall only,within its foreseeable scope and the scope of its causal effect,assisting in considering the profit size,assume partial joint and several liability;Second,Partial joint and several liability between the negligent securities service institutions shall be determined according to their duty of care whether there is overlap;Third,Within the scope of overlapping liability,the internal liability share of each responsible person shall be determined by comprehensively considering the proportion of causal force and the degree of fault.Forth,Within the scope of overlapping responsibilities,those securities service institutions can recover from the issuer and other institutions the part of the first compensation that exceeds its own internal responsibility share,but for the sake of punishing the issuer,the issuer is deprived of its procedural interests and is prohibited from exercising the right of recovery from the intermediary.