Research On Special Representative Action System In Securities Dispute

Article 95,paragraph 3,of the Securities Law provides for the litigation system of special representatives in securities disputes,which has two characteristics: on the one hand,investor protection institutions participate in litigation as litigation representatives,on the other hand,the way of participating in litigation by implied participation and express withdrawal.The proposal of the litigation system of the special representative of securities disputes balances the strength of both sides of the lawsuit,reduces the cost of safeguarding the rights of medium and small investors,saves judicial resources,improves the efficiency of litigation,and opens up a new way for medium and small investors to safeguard their rights.In order to improve the litigation system of special representatives in securities disputes,the Supreme People’s Court has issued relevant judicial interpretations,investor protection agencies have also issued specific business rules,and China has initially constructed the framework of the litigation system of special representatives in securities disputes.However,at present,there are still some deficiencies in the system regulation and practice of the special representative litigation system in securities disputes.This paper analyzes the litigation system of the special representative in securities disputes from the aspects of the starting mode of the special representative litigation,the litigation protection of the investor right holders,the supervision mechanism and the incentive mechanism of the investor protection institutions,and puts forward some suggestions for the improvement and development of the system.This paper is divided into four parts.The first part is the research on the overview of the litigation system of the special representative of securities disputes.This part analyzes the connotation of the litigation system of the special representative in securities disputes,and then expounds the three typical characteristics of the system: first of all,the specificity of the litigation representative,secondly,the extensiveness of the protection scope of the right holder,thirdly,the limited expansion of the effectiveness of the judgment.At the same time,this part discusses the theoretical basis of the system from three aspects:the theory of litigation responsibility,the principle of social intervention and the principle of balance of litigation interests.By comparing with class action,group action and public interest litigation,this paper discusses that this system draws lessons from the "opt-out" mechanism of group litigation,introduces non-profit organizations as litigation representatives,and has the color of public interest litigation at the same time.It is a group litigation system with Chinese characteristics.Finally,it discusses the functions of the system in balancing the strength of both parties,reducing the cost of safeguarding the rights of investors,stabilizing the order of the securities market and improving the efficiency of litigation.The second part is the research on the current situation of the litigation system of special representatives in securities disputes.By combing the relevant legislation and judicial interpretation of the special representative litigation system,this part summarizes and analyzes the legislative status of the special representative system in securities disputes,which provides a practical basis for the study of this paper.With regard to the research on the judicial status quo of the special representative system in securities disputes,this paper mainly introduces the starting mode of the Kangmei Pharmaceutical case,the determination of the scope of the plaintiff,the liability of the defendant and the implementation of the litigation of the investor protection agency.based on this,the practical application of the special representative litigation system is summarized and analyzed.The third part studies the existing problems of special representative action system in securities disputes.By investigating the specific application of the special representative action system for securities disputes and combining with the basic theory of the special representative action system for securities disputes,this part reveals that the initiation of special representative action for securities disputes in this system is restricted by the litigation procedures of ordinary representatives,and the right holder lacks the protection of the litigation procedures.There are four specific problems about the lack of supervision on the exercise of litigation right of the investor protection Center and the lack of incentive mechanism of the investor protection institution.The fourth part puts forward suggestions for perfecting the litigation system of the special representative in securities disputes.This part,on the basis of drawing lessons from developed theories outside the region,puts forward the following countermeasures for the problems existing in the specific application of the special representative litigation system for securities disputes: make the special representative lawsuit parallel to the ordinary representative lawsuit;protection of the procedural rights of individual litigation;improve the supervision mechanism of investor protection agencies by strengthening the information disclosure obligations of investor protection agencies and strengthening the judicial review power of the court;under the existing system,refine the supervision of investor protection agencies Litigation Implementation Incentive Mechanism.