The Proportion Of Joint And Several Liability In Tort Of Misrepresentation Of Securities

Chinese Securities Law and relevant judicial interpretations have made provisions for intermediary agencies in false statement infringement cases,requiring intermediary agencies to assume civil liability for false statements of issuers and listed companies based on presumption of fault.In the past,the civil liability for false statements of intermediaries has always been presented in the form of "all or nothing".Even if the intermediaries are only slightly negligent,they still need to bear a huge amount of joint and several liability compensation for investors.Starting from the "Wuyang debt case",local judicial organs have carried out innovative exploration on how to assume the responsibility when the intermediary agency negligently issues false reports,among which the proportion of joint and several liability is the most popular.This article starts with introducing the single and comprehensive joint liability of intermediary agency and its theory,combing through the problems of joint liability in practice,puts forward the new path of fault issuing false report liability of intermediary agency,and determines the application of proportion joint liability.This paper is divided into four chapters.The first chapter introduces the background and leads to the question.Firstly,by introducing the Securities Law of our country,relevant regulations and theoretical support,and the existing problems,that is,the responsibility of false statement of intermediary agencies is too single,it is difficult to reflect the comparative negligence of different intermediary agencies in the same false statement case,and analyze the legal documents related to false statement of intermediary agencies.It is concluded that there is a dilemma in the distribution of negligent false statements of intermediaries,that is,lawmakers and the supreme judicial organ hope that intermediaries bear joint liability and have a certain proportion,but the Securities Law stipulates the joint liability of intermediaries,even if the supreme judicial organ issues a judicial interpretation,it is difficult to shake the rigid stipulation of joint liability.The second chapter puts forward the problem part,analyzes the current deviation between judicial practice,the theory of "Securities Law" and the provisions of joint and several liability,and the current situation of the liability of intermediary institutions,which is mainly manifested in three aspects: on the one hand,the failure of the "gatekeeper" theory that requires intermediary institutions to bear joint and several liability;on the other hand,the improper application of joint and several liability causes market imbalance.Although the originator of the "gatekeeper" theory is ideal,in practice,the conflict of interests of relevant subjects cannot be avoided,intermediary institutions cannot be qualified for the role of "regulator" and "service provider" at the same time,and the improper application of joint and several liability destroys the market balance.In this dilemma,the judicial organs restrict the application of joint and several liability in order to recover this improper situation.And creatively judge the intermediary agency to bear joint and several liability according to a certain proportion.The third chapter is the part of solving the problem and putting forward the point of view,demonstrating the generalization of proportional joint and several liability from creative judgment to legislation in judicature.Analyze the advantages and disadvantages of proportional joint liability,and determine the nature of proportional joint liability.Proportional joint and several liability has natural advantages,that is,it is more in line with the fair principle of equal fault and liability,and can promote the precise strike of "chasing the first evil" of liability.However,proportional joint and several liability will also bring new problems,so it is necessary to identify the nature of proportional joint and several liability.There are three points of view: false joint liability,semi-superposition separate tort and combination rule.Which point of view should be adopted needs to be analyzed.The fourth chapter discusses the application of proportional joint liability.It mainly includes two aspects,one is the application subject of proportional joint liability,the other is the determination of proportional joint liability "proportion".Not all intermediaries are applicable subjects of proportional joint and several liability.In the primary market,sponsors are fully obligated to the whole process of disclosure of securities listing information and participate in the overall picture of securities listing,so sponsors do not have the applicable premise.Other intermediaries are applicable subjects of proportional joint liability.In the secondary market,it is different.In the process of continuous information disclosure,it should be judged comprehensively according to the content of information disclosure,the participation of intermediaries in information disclosure and the cause force.The determination of proportion,according to relative comparative negligence judgment,mainly includes: fault degree,cause force,tort profit degree comprehensive determination.