| With the occurrence of the financial crisis, nations heavily impacted start to reform their present domestic financial supervision system by means of rethinking and rebuilding their respective financial market supervision systems with a view to the financial market structure, reconfiguration of financial supervision ideals, and obligations of the supervisors. In this process, a heavily-debated focal issue is the mode and role of self-discipline management in the post-crisis financial supervision order. This issue has been widely disputed on the domestic level and international level, both in theoretical research and by policy-makers. But the debate so far has exhibited apparent flaws. In the present development of financial market, although the US financial crisis led to the collapse of financial credit, as a result of which people in general start to question the efficacy of self-discipline management system in the financial service industry, we should however realise that the choice of self-discipline management should no longer be a political one.Due to the complication and globalization of financial markets, any government shall inevitably encounter the fundamental issue of management and arbitrage in its efforts to achieve overall control and management of financial markets. Only with the active participation of the industry into the management can this vicious cycle be broken. Therefore, a reformation without the involvement of the financial industry constitutes a serious defect and omission in the discussion and debate. In the overall financial market, the securities market is obviously the most complicated, with the highest risk of investment, and meanwhile the task of effective supervision is also the hardest. Cross-border alliance in the financial market occurs most often in the capital market. What’s more, every disruption of financial storm and the following economic turbulence have basically evolved in the capital market. Therefore, the self-discipline management system in the securities market should be the priority in the reformation of the financial supervision system.The reason why the self-discipline management in the securities industry has aroused so much attention and become the focal target of the reformation to the financial supervision system lies in the fact that the status quo of the self-discipline management in the securities industry is dissatisfactory, facing problems like incompetence in the self-discipline management, or marginalization of self-discipline management, or faith breaking of self-discipline management in the face of conflicts of interest. Many factors contribute to the above problems, but the primary reason lies in the "tendency towards public right" of the self-discipline management in the securities industry. To put it in another way, all the superficial phenomena denoting incompetence of the self-discipline management in the securities industry lies in the "tendency towards public right". Based on this knowledge, this dissertation focuses on the analysis of the reasons for and evolvement path of the tendency towards public right of the self-discipline management in the securities industry and probes into the possible corrective approaches to the tendency.Firstly, Definition of the self-discipline management in the securities industry and analysis of the tendency towards public rightThe highest level of knowledge is to grasp the essence of things. The same is true with the self-discipline management in the securities industry, which has had a long tradition but meanwhile has always been a lasting topic in the reformation of securities supervision. The fact that nations of different times and political systems have strived to research on the reformation and perfection of the self-discipline management in the securities industry explains the importance of the self-discipline management to the supervision of the securities market and the perplexity in it. In order to get out of such perplexity, it is essential to clarity essential matters.The definition part of the self-discipline management in the securities industry is divided into two sections. Section one is inspection into the private identity of the self-discipline management organizations. It begins with the analysis of "self" and "management", then the dissertation proposes that, although in the financial industry the "self" in the self-discipline management is always in the form of collective organizations, as a corporative management mode, it is independent from and coexist with the administrative management. It belongs to a nongovernmental private entity in the civil society and is meanwhile highly independent. Although after the involvement of the government into the supervision of the securities market, the self-discipline management is not totally unrelated to the government, independence is still the most essential feature of the self-discipline management. Besides, the self-discipline management as a private entity is also reflected by contract theory and the limited "public interest" in the self-discipline management. The second section is the discussion over the private right feature of the self-discipline management. It begins with the private right nature of the self-discipline management right through analysis of target of the exercise of such a right by internal members, the common interest safeguarded by the self-discipline management right and its relationship with government supervision. Besides, by analyzing the source of the right of autonomy of the self-discipline management right and the features of the right of autonomy, the dissertation believes that the self-discipline management right still belongs in private right, in spite of the fact that the right of autonomy of the self-discipline management in the securities industry includes compelling penalties and the power to punish, thus distinct from the public power exercised by the government.What’s more, the dissertation also justifies the private right nature of the self-discipline management right and the legitimacy of its right system by means of constitutionality and contract feature of the self-discipline management right. It also discusses the legitimate procedure for the exercise of the self-discipline management right in the securities industry, and thinks that in the process to the rule of law, compliance with due procedure has become an inexorable trend and practical demand. In defining the private right nature of the self-discipline management right, the dissertation also admits that, while acts of self-discipline management should be respected by external forces, the self-discipline management itself should comply with the due procedure.In the section of the "tendency towards public right" of the self-discipline management in the securities industry, this dissertation, after defining the "tendency towards public right", discusses the following three aspects:securities exchange, securities association and the objective of the self-discipline management in the securities industry. The "tendency towards public right" of the securities exchange exposes its quasi-administrative-agency identity. This is especially the case in China, where the self-discipline management organizations in the securities industry has turned into "public power agencies of Chinese characteristics". They are no longer corporative organizations of private nature. Members of the securities exchange have changed from the "self" into target of administration. The so-called self-discipline management has turned into executive power in the name of self-discipline. The "tendency towards public right" of securities associations is represented by the fact that they have become representatives of the members of the industry and defenders have been reduced to service providers. Their self-disciplinary function has turned into "the bridge and link of the government" and become the extended tool of the government. The objective of the self-discipline management in the securities industry has shifted from safeguarding the interest of the members of the industry as a whole group to safeguarding the public interest, which is unreasonable and unjust.Secondly, To Explore the Trend of Public Right in Securities Self-Regulation of Securities Industry in International PerspectiveUSA and UK being the most developed economy countries in the world, the emergence of their securities market just originated from the forming of the securities self-regulation organization,namely the stock exchange. The "innate" and pure nature of private club of this kind of stock exchange laid down a solid foundation for their "independence" and "autonomy". During the period of more than one hundred year, USA sticked to the theory of economic liberalism and abode by the creed of "the best government is the government with minimum intervention", which greatly promoted the liberal development of American economy and fanance and the self-regulation organization without government regulation. Nevertheless, the serious speculation, misrepresentation and fraud problem in American security market brought by dispersion and freedom caused a mistrust of self-regulation and the government intervention. Accompaning with every explosion of financial crisis, while accusing the blemish of self-regulation of security industry, the government began to strengthen the strength of regulaion on the security market, and finally making the self-regulation of security industry being charged by government, which led to the self-regulation of security industry gradually losing its nature of independence and autonomy, and being extensively queried to turn into the role of "quasi-government organ". Regardless of the opposing augument in both academic circle and judiciary, the extensively querying of the academic circle and judicial judgment have showed that some alienation of the traditional self-regulation of security industry in west countries has already occured.Japan has a long history for government to take charge of the self-regulation of security industry, and the administration attribute of self-regulation of security industy became stronger and stronger, which in some sense reflected the development trend of public rights " in self-regulation of security industry.Thirdly, To Discuss and Analyse the Causes of the Tend of "Public Right " of Self-Regulation of Security Industry The causes that brought about the trend of "public right" of self-rregualton of security industry include both its innate reasons of self-regulatin of security industry and reasons in the security market environment. These inherent and extrinate reasons interacted and resulted in the outcome of the trend of "public right" of self-rregualton of security industry.These reasons are mainly expressed as followingst:first, the limitation and conflict of interests of self-regulation of security industry is just the internal factors of the alienation of self-regulation". Facing with the changing market, the advantages of self-regulation of security industry become weaking gradually. After being restructed into company, the security exchange has confronted some problems such as its own self-regulation duty being conflicted with its own interests and other stakeholder’s interests, which would lead to some inadequate self-regulation such as loosening and partiality in self-regulation of security industry. Second, the intervention policy of the government to the financial market and the maintenance target of public interests is for government to directly interfere with security regulation, which is the external reason that leads to the trend of "public right" of self-regulation of security industry. Third, the changes in both the security market structure and its economy environment is the fundamental factors that cause the alienation of self-regulation of security industry. These developments and changes directly the changing role of government intervention in fanacial market and security market from a loosening regulation to stregthening regulation. It can be followed that the development trejectorie in self-regulation of security industry just coinide with the development trajectories of government regulation theories.Confronted with the alienation phenomenon of self-regulation of security industry and the phenominon of China’s immunity from the American financial crisis in2007, some approve the effectiveness of Chinese current security system, the reasons for supporting the current system are based upon the relevant simple security market structre, self-enclosed trading field, less competetion and being greatly deviated from international security market. These factors mentioned above will in no doubt affect the correct path of Chinese fanacial regulation reform.Fourthly, To Analyse the Path Dependence of the Alienation of Self-regulation of Securities IndustryAlthough all the self-regulation of security industry in every country presents the development trend of "public right", the path selection and cannotations of the alienation of selr-regulation of security industry are different under different environment. According to North’s institution change theory, any institution change always has its own path dependence to follow. According to North’s institution change theory, there are two important factors that constitute the main reasons of institution change path dependence,namely culture and polity. The values, concepts, convictions and knowledge which are accumulated in cultural development and political system, organization and interest group strength decide the differrent institution selection path.In USA and UK, the self-regulations of security industry naturally orignated from the "liberalism" spirit abode by market economy and democracy nation, and was the just outcome of most developed civil society in western world. It is the unique nature of "independence","autonomy" and the value concept of national protection of private right that makes the self-regulation of security industry in USA and UK maintain the nature of autonomy prominent. Although the self-regulation of security industry gradually weakened and produced the alienation phenominon, people still consider self-regulation of security industry as beding an essentional part of security regulation system.In China, the thoughts and value of totalitarianism,nationalism and the officialdom standard formed during feudalistic society of several thousand years is the foundation upon which the govenrment choose the current security regulation system with government taking predominance. The lack of civil society in China history make the self-regulation organization of security industry established under the promotion of government being deprived of and no expressing the innate nature of "independence" and "autonomy" of a true self-regulation organiazation of security industry, which is also leading to a differrent choice of the trend of the alienation of self-regulation of security industry in China.Fifthly, To Discuss the Path of Retifying the Trend of "Public Right" of Self-regulation of Security IndustryThe abnormal morpholog of "public right" of self-regulation of security industry should be rectified so that self-regulation will play its deemed role and therefore effectively promote the developent and prosperity of one counry’s fianacial market and security market. The relevnat paths to rectify the trend of "public right" of self-regulation of security industry in China are as followings:firstly, we should correct the concept and idea of government coercibe intervention,namely the long-cherished principle in Chinese security regulation system, remove all the phenominon of misuse of power and run away so that the government could transfer their authority reasonably and the self-regulation of security industry would have a necessary space for normal development. Secondly, the security exchange’s demutualization transform and the reasonable orienation of self-regulation of security exchange in China is an importart parth for rectifying the alienation of self-regulation of security industry. At present, the security exchanges are the main self-regulation organzition in China, and its problem of "public right" is also the most serious. Conforming to the development trend of electronization,networking, internationalization and the security exchange’s demutualization transform in the world, the security exchange in China should not go backwords from that. The corporate system reform of Chinese security exchanges will in no noubt come true in no long run.China should borrow the best practice of the security exchange’s demutualization transform for referrence, reasonably definating the role of security regulation of security exchange so as to decrease the conflicts of interest and play its due role. Thirdly,to establish the securities industry association as the uniform, independent non-government self-regulation organ in China security market is an important safeguard for rectifying its trend of "public right". The establishment of its status of uniform, independent self-regulation organization, the empowerment of right to make self-regulation rules, autonomy authority in industry mamagement, righ to access to security market, punishment right for violation of rules, authority to rule on members, and improvement of its own organzition structure are among the important measures to improve the self-regulation of security industry in China. |
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