| As the gatekeeper of the bond market,intermediaries provide professional knowledge to issuers and protect the interests of investors in the bond market.However,at present,due to the shortcomings in the civil liability system for misrepresentation of bond issuance intermediaries in China,there are problems such as unclear provisions on the liability of intermediaries in terms of liability boundaries,accountability and supporting systems,resulting in unreasonable liability,and disputes over misrepresentation by intermediaries occur from time to time.This is not only detrimental to the effective regulation of misrepresentation by bond issuance intermediaries,but also detrimental to regulating the normal order of the bond issuance market.Based on the actual situation of China’s bond issuance market,this paper first explains the basic issues of the meaning,nature,constituent elements and principle of attribution of civil liability for misrepresentation by bond issuance intermediaries,and clarifies that the civil liability of misrepresentation by intermediaries in China is tort liability,and the principle of attribution should be the principle of presumption of fault.Secondly,by summarizing the provisions on civil liability for misrepresentation of bond issuance intermediaries in existing laws,judicial interpretations and other normative documents,the existing problems in the current system are pointed out,namely,the scope of liability is not clear,the accountability system is not perfect,and the supporting system is missing.Finally,through in-depth analysis of the relevant extraterritorial institutional experience,targeted suggestions are put forward to improve the civil liability system for misrepresentation of bond issuance intermediaries in China.Regarding the scope of liability,Article 163 of China’s Securities Law only clarifies that the standard for determining the fault liability of intermediaries is diligence,but does not distinguish between the general duty of care and the obligation of special attention from a deeper level.Drawing on the due diligence defense and sliding liability standards of the US Securities Law,in the future,the general duty of care of intermediaries should be clarified by dividing the functions of intermediaries in the relevant industry normative standards,and the due diligence defense system should be introduced to enrich their special attention obligations.Regarding the issue of accountability,there are certain deficiencies and conflicts between the Securities Law and the New Judicial Interpretation and the Civil Code on the civil liability of intermediaries.On the one hand,the provisions of the Civil Code and the New Judicial Interpretation do not cover ordinary negligence;On the other hand,there is a formal conflict between the New Judicial Interpretation and the Securities Law.Therefore,in order to further rationalize the civil liability system for misrepresentation by China’s bond issuance intermediaries,it is necessary to improve the relevant provisions of the Securities Law on joint and several liability while introducing the proportional joint and several liability system.For the lack of supporting systems,at present,China’s laws and regulations have fewer provisions on the civil liability system,if you want to further effectively restrain the misrepresentation behavior of intermediaries,you need to consider the establishment of a supporting system for civil liability to assist and cooperate,specifically you can learn from the "sponsor lead responsibility model" in Chinese Hong Kong to divide the scope of sponsor functions,sponsor access standards and sponsor fees and other institutional experience,establish a reputation constraint mechanism for intermediaries in China as soon as possible,and further improve the intermediary selection and commission payment system. |
