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A Comparative Study Of The Punishment Regulation On Breach Of Trust In Security Market

Posted on:2016-09-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:X GaoFull Text:PDF
GTID:1226330470982590Subject:International law
Abstract/Summary:PDF Full Text Request
Market economy is the law-govern and credit economy. The principle of good faith, as “the emperor rule” in capital market, plays the fundamental role in safeguarding the order of security exchange market. And in the developed market, the good faith can be the function release of securities market as well as the fundamental guarantee of secure transaction, so strengthening the construction of good faith is of great significance to development of capital market. However, for a long time, our social credit and market fiduciary system have been eroded seriously by all sorts of infidelity. Especially in the monetary and securities market, it is very common that the public and private property rights are being violated and the market order is being broken, for instance, in public companies, a lot of fraud exist in information disclosure; the securities companies and their employees are engaged in insider trading; the embezzlement of investors’ deposit; the manipulation of market, the intermediary institutions, accountants, securities analysts and lawyers; the recommendation representatives are involved in forging, which cause a great deal of trust crisis, shaking the integrity basis of securities market and doing the huge harm to the healthy development of capital market.With the development of economy and the acceleration of internationalization of securities market, the prevention and control of infidelity has become the common problem in many countries(regions). In June 2014, the State Council officially lauched the first national planning of social-credit system construction, “The program for the social-credit system construction”, which included 34 important tasks in four major fields such as government credit, business credit, social credibility, judicial credibility, this is an important milestone in the process of the social credit system in our country, and it has the guiding significance to improve the construction of market credit system, being an important part of the market economy, the securities market should be the forefront of the construction of social credit system. In order to guide the stock market to establish the integrity of law-abiding atmosphere in the stock market, breaching promises should be investigated by civil, administrative and criminal responsibility. But in China it is difficult to deal with them with the civil and administrative means, the current criminal legislation should function efficiently, however, there are flaws and deficiencies. In practice, there are only two charges on breach of trust, named "the crime of damaging the interests of listed company in bad faith" and "the crime of using entrusted property in bad faith", which fully shows the criminal legislation began to concern market breaches of trust, and paid more attention to protect the trust relationship among main market players. Yet obviously, the fighting and the standard are not sufficient to meet the needs of the integrity system of financial securities market. It is the defect on financial legal regulation and the lack of punishment regulation in the securities market that lead to the insider trading, " Rat Trading ",other crimes of breach of trust, seriously damaging the basis of integrity of the securities market. At the same time, there is only few academic study focused on breach of trust in the stock market. So far, the mainstream theory has not formed which is adapt to the development of the market economy. The academic study of good faith principle is just limited on the fields of civil law and contract law, less on the principle of good faith on the field of securities law, practice analysis from punishment regulation and criminal responsibility are not enough. Therefore, learning lessons from foreign relevant legal system about breach of trust, building up the criminal legislation and punishment regulations for breach of trust in our own financial securities market are of the great theoretical significance and the practical value.From the judicial practices and the researches of Germany, Japan, Taiwan and other countries, according to the needs of economic development and legal practice, they take the punishment regulation way to breach of trust, judge breach of trust as an independent crime type in the criminal code, even using the dual mode of legislation in the company law, securities law and other fields to introduce the special breach of trust with the aim of deterring and punishing the infidelity, in order to standardize and guide the market, which also got the recognition and application of many countries in continental law system. On the other hand, the Anglo-American law system did not set the foundation and the principle of the crime of breach of trust, they used embezzlement, theft and fraud to convict and punish crimes of violating the fiduciary duty of honesty and credit. At the same time, in the field of securities laws in common law system countries, such as America, statutes and case law are in parallel development and promote each other, on the basis of enacted law, formed the perfect case rules, system and comprehensive supervision legal system to crack down insider trading, securities fraud and breach of trust behavior. To further study the integrity of securities market issues of law protection, the paper based on the international perspective of legal system aims to analysis the research on both continental law system and Anglo-American law system. This paper includes eight chapters, such as the preface, the comparison of the legal protection of the integrity of securities market, the analysis of breach of trust penalty regulation theory, foreign legislative considerations and comparison, analysis of the case investigation and empirical analysis, the "rat trading" typical breach of trust and so on. Through the interpretation of the theoretical source of good faith principle between Chinese and Western, evolution and its application in the securities market and the process of the rule of law. This paper makes a comparative analysis about the breach of trust theory of the continental law system, legislative practice, the judicial precedent and the penalty regulation mode of common law system.And it conducts the systematic research on securities market regulation of penalty of breach of trust, in order to give a suggestion on building integrity legal protection system in securities market, and to solve problems in administrative law enforcement and criminal justice practices.In fact, law regulation is a kind of an intervention to the corresponding main body behavior according to certain law rules, by intervention and adjustment to guide their behavior, finally to achieve the well-orgnized order of social relations. Facing to increasingly complicated infidelity, under the circumstance of the lack of the traditional contract awareness and the advanced credit system in our country, cases law, civil law, commercial law and administrative measures are far enough to prevent those infidelity. In order to fight against the infidelity more powerfully, we should absorb the related legislation experience and rules both from continental law system and Anglo-American law system to push forward our country’s criminal legislation in bad faith, promoting the law protection of social credit market and the construction of financial securities market for good faith.
Keywords/Search Tags:Security Market, Good Faith, Breach of Trust, Punishment Regulation
PDF Full Text Request
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