Research On The System Of Infringement Of Securities

Securities tort relief system has important legal function, such as to protect the investors’ interests, to prevent the tort, and to promote the effective implementation of law, and plays an important role in the development of securities market. Nevertheless, China’s securities tort relief system is far from perfect; the former studies on securities tort relief system have focused on the micro issues such as constitutive conditions of liability, but haven’t deeply researched on its difference form tradition tort relief system, and the resolution of difficult action relief caused by the difference. It is shown by the judicial practice shows under traditional action modes that, torts in security market can not only be deterred, and the infringer does not necessarily assume compensation liability for all damages, but also the infringer can get illicit profits and have no fear for securities tort relief legal system. The action mode in securities tort relief system is a key issue in the perfection of securities tort relief system. The study on securities tort relief system should be from the perspective of conjugation of substantive law and procedure law, not only confined to procedure law. With the peculiarities of security torts, whether the damages caused by security torts can be relieved not only influences the safeguard of individual investor’ interests, but also determines whether China’s securities market can prosper and mature, in a economic and political manner. Securities market is fertile ground for cultivating powerful company and emerging industries, which plays a profound role in China’s economy development. Under the China’s policy background of promoting the development of securities market, to perfect the securities tort relief system from the perspective of action mode and establish the feasible action mode system so as to change the status quo with not enough reliefs and weak relief has significant meaning and value in practice.Because of features of securities tort, such as numerous victims, disperse damages, the construction of rational group action system— one legal procedure to relieve all victims, is vital and necessary for securities tort relief to be achieved. As for the perfection of securities tort relief system, group action relief is necessary; its rationality does not only rely on that it has lower action cost and higher relief efficiency, compared with traditional action mode, but because it fits the features of securities tort disputes and the settlement of them, and can relieve the many damaged rights entirely, which cannot be achieved under traditional action mode. Because separate action or concurrent action only pays attention to the proper settlement of case, one by one, doesn’t provide an integrity relief for victims suffered in the same tort, the effect of relief is very limited. The injured investors are in the same or similar position in the securities market, incur the damages by the same tort, and so get access to the same relief accordingly. This is the need of fair compensation for investor’s damages, also that of the implement of full compensation idea. Only by the construction of group action system which can polymerize all victims’claims can settle the securities tort relief totally, can totally realize the legal function of securities tort relief system. Because of the complexity of securities tort and the diversity of involved interests, different countries, based on different legislation aim of group action, have established securities group action systems with their own features, among which there is great discrepancy, and all of them are still under continuing perfection.The representative action system with undetermined number of plaintiffs in China’s Civil , Procedure Law is rational in that it complies with the features of securities tort disputes, and can achieve integrated relief to securities tort and meets China’s practical need. To enrich this system so that it can be applied in the practice of securities tort actions is feasible and will meet with less reform resistance. But there is jurisprudential conflict between representative election method and the expansion of legal effectiveness judgment, which can be defused by changing representative election method. As for the construction of group action system on securities tort relief, firstly certification for bringing representative action with undetermined number of plaintiffs should be laid down additionally and the stipulations on prepositive procedure should be canceled, so that the checks and balances between jurisdiction and litigious right can be achieved, which ensures securities group action that should be brought can be brought, and as well prevents the abuse of group action to infringe the legal interests of defendant, such as list company, and which balances the reasonable needs of various parties. Many countries have made such stipulations. Secondly, representative action rules should be perfected, so that representatives in China become fundamental forces in start and operation of the group action, where the election of representatives is checked and determined by court based on the application of plaintiffs; the court supervision of representatives’ litigation action and stipulations should be clarified, and court should be granted extensive procedure management rights, in order to balance the interests of the parties to the proceeding and safeguard the interests of class members and promote the orderly running of group action. At last, on the methods of group members taking part in representative action with undetermined number of plaintiffs, as for the proposals to introduce the United States’ class action "Opt-out" rule, the dissertation analyzes the operating mechanism of the rule and its inherent defects, and suggests that China should persist in the "Opt-in" rule (announcement and registration) which is stipulated in currently effective legislation, and simplify the registration procedure at the same time.