Research On The The Undertakings Made By The Parties To Securities Administrative Law Enforcement

In recent years,the reform of the registration system has been deepening,and has also put forward higher requirements for the level of protection of investors.Regulators need to deal with the relationship between punitiveness and law enforcement flexibility.China has begun to explore law enforcement contradictions and maintain the order of the capital market through the application of the Rules for the undertakings made by the parties to securities administrative law enforcement.The first chapter analyzes the value of the rules for the Undertakings.The first is the analysis of concepts and legal relations.The essence of the system is the securities administrative law enforcement settlement system,but it is the upgrading of the original concept of administrative settlement.Secondly,by analyzing the system from the perspective of cost-benefit analysis,it can be seen that the system is a law enforcement strategy that attaches equal importance to efficiency and fairness,and can reduce law enforcement costs.Finally,this part analyzes the risk control current legislation from both substantive and procedural aspects,laying the foundation for the improvement of the future legislation.The second chapter studies the practical issues of the Undertakings.Firstly,it sorts out the facts of the only cases at present,and summarizes the problems.Then it further explores the reasons why the system has not been widely practiced.First,concerns about the abuse of power and the lack of attention to the right to express public opinions have led to the lack of public recognition,and secondly,the imperfect oversight mechanisms have also hindered its development.Finally,the lack of procedural rights protection for the parties and the unclear nature of the undertaking fund are the main reasons for the lack of motivation for the parties to apply for undertakings.For regulators,the current severe enforcement environment and the higher enforcement requirements for the application are the reasons for the lack of motivation.The third chapter analyzes the administrative settlement activities of U.S.securities,carries out from the procedures and entity content of applying the settlement,and studies the motivation of settlement between the parties and regulators.The study of procedural provisions in this chapter mainly includes several stages of application by the parties,consultation between the two parties,and agreement.The substantive content discusses the premise,scope and the fair fund system.It lays the foundation for the discussion of the Undertakings in the next chapter.The fourth chapter puts forward suggestions for improving the legislation of the undertakings made by the parties to securities administrative law enforcement.The overall path is first of all to increase the restraint mechanism of discretion,establish clear guidelines for the exercise of discretion in cases,improve the public participation mechanism,establish a accountability mechanism for law enforcement personnel,and prevent abuse of power.Secondly,it is necessary to establish a complete internal and external supervision mechanism.Finally,establish an evaluation,reward and punishment system for the quality of the Undertakings work to encourage regulators to carry out effective work.At the same time,it is also necessary to give regulators adequate security of law enforcement resources.In terms of the entity structure,the first of all is the premise for the application.At present,it is stipulated that the parties do not need to admit the violation of the law or responsibility.When the case involves a large extent and the amount is large,the parties should be required to admit the violation as a condition for settlement when reaching a settlement,which is a more stable and reasonable arrangement.Secondly,regarding the scope of cases,China belongs to the model directly stipulated by law,which can be used as a reference by China according to the public interest review standard.Thirdly,in terms of the content of the settlement agreement,first,the rights and obligations of administrative organs,parties and stakeholders need to be improved.Second,it is necessary to clarify the nature of the undertaking fund.and the corresponding hierarchy shall be set according to the degree of the violation,the degree of damage to investors,and the law enforcement stage of the case.Third,Enterprise compliance measures are also one of the important contents of the agreement.The role of the third-party supervision mechanism can urge enterprises to correct illegal acts and establish an internal control mechanism.Finally,,there are different remedies when the authority and the counterpart do not fulfill the settlement agreements.In terms of the procedural design,it is necessary to improve the application link first.it is stipulated that the securities regulatory agency has the right to file a settlement motion,and then formally submit the application after the counterparty accepts it,and establish a communication mechanism between the two parties in the application link.At the same time,it should stipulate that the parties have a fundamental decision on whether to apply or not.Secondly,in the communication process,determine that the principles of consultation,and expand the ways agreed by regulatory agencies and the parties.Increase the public response method to form reconciliation to improve the efficiency of consultation.Finally,in terms of decision-making,the collective decision-making mechanism should be improved.