A Comparative Study Of Cross-border Securities Regulatory Mechanisms Between China And The United States

In recent years,China's capital market has developed rapidly.By the end of 2017,there are 3,485 listed companies in Shanghai and shenzhen,with a total market value of 56.7 trillion yuan,the second largest in the world and second only to the United States.With the implementation of the "go out" strategy,the number of Chinese enterprises listed abroad and foreign enterprises participating in China's securities market activities is increasing.Therefore,the primary task of our country's securities regulator is to expand the breadth and depth of the capital market,improve the quality of the legal system of securities,build an international and standardized capital market environment and increase the appeal of the capital market in China.There are usually two or more countries listed in the overseas listing of enterprises,and there will be regulatory conflicts if the regulatory rules on listing between countries are not completely consistent.Capital markets are highly interconnected and competitive,and regulatory conflicts have raised the costs of cross-border securities transactions,which have impeded the development of cross-border securities.In this paper,on the extraterritorial jurisdiction of the United States securities law and cross-border securities regulation cooperation mechanism as the research object of reference,from the practice experience in cross-border securities regulation,an international perspective on the process of China's capital market and opening problems and challenges,discussed under the background of financial globalization,built in the system of our country's securities law shall be applicable to the outside,and the use of cross-border securities regulation cooperation mechanism in China securities market and overseas interests protection,enhance our adaptation and influence the form and development of the system of international securities regulation cooperation ability.The Article proceeds as follows.The introduction part presents the problems and provides a comprehensive literature review on the domestic and international scholarship in the field of extraterritorial jurisdiction and multinational enforcement of U.S.securities laws,and establishes the research approach and methodology of the paper.Part I first analyzes the development of U.S.securities legal system and extraterritorial jurisdiction theory,provides a comprehensive overview of extraterritorial jurisdiction theory of U.S.Despite the usual presumption for the territorial application of securities laws,U.S.courts have applied domestic antifraud and antibribery provisions extraterritorially to transactions in other countries,justifying its actions as necessary to protect U.S.investors and the integrity of U.S.markets.Before Morrison v.National Australia Bank Ltd.,the United States court greatly expanded the scope of application of the securities laws extraterritorially through the innovation of the theory of personal jurisdiction and subject matter jurisdiction.In Morrison,the U.S.Supreme Court adopted the principle of presumption against extraterritorial application,which dramatically limited the extraterritorial reach of federal securities law.Than analyzes the current approaches of U.S.courts and SEC in application of antifraud and antibribery rules.Part II focuses on the cooperation mechanism of U.S.in cross-border securities supervision.Through the research on the implementation mechanism of U.S.securities laws and the cooperation mechanism of cross-border securities supervision,the paper analyzes the regulatory export and the challenges faced by the U.S.in the field of international securities regulation.U.S.securities laws have long been a source of export,thanks to the size of U.S.capital market and the rush of foreign governments to follow suit.The widespread adoption of U.S.norms and practices enhances the prestige and power of the SEC,and based on that advantage,the U.S.dominated the formulation of international securities regulatory rules.But overregulation has also led to a decline in the competitiveness of U.S.capital markets.Part III focuses on the impact of the U.S.securities regulatory system on China's financial security.With the implementation of the "go out" strategy,the number of overseas investment of Chinese enterprises is increasing year by year.Through case study,the paper analyzes the influence of extraterritorial application of U.S.securities laws on Chinese companies who listed in U.S.securities market,accounting firms,securities regulatory agency and economic sovereignty of China.The U.S.vigorously promoted the international financial supervision system characterized by "soft law",and promoted the internationalization of securities regulatory standards of U.S.to safeguard the financial hegemony.We must adhere to independent cross-border securities regulatory system in China,actively participate in the development of international securities regulation,improve our voice in the global financial governance.Part IV returns to our country's enforcement and cooperation mechanism in cross-border securities supervision and makes a comparative study with the United States.Based on the analysis of capital market development,the securities law enforcement mechanism and cross-border securities laws enforcement practice of China,the article put forwards that under the background of the absolute dominance of U.S.capital market and the internationalization of U.S.regulatory standards,the optimal strategy of our cross-border securities regulation and enforcement is to introduce a conflict of laws approach.Part V focuses on the construction of China's cross-border securities regulatory system.Firstly,the necessity of application of our securities laws extraterritorially is discussed.With the rapid development of the internationalization of securities market in our country,the participation of foreign enterprises and individuals in the securities transactions will increase.So we should build our extraterritorial jurisdiction theory of securities laws as soon as possible.Then,proposes have being made from legislation,extraterritorial jurisdiction principle,judicial governance role and regulatory idea and ability construction of China's cross-border securities laws enforcement system.The conclusion part reviews the main research contents of the paper,affirms the proposition that legislature should deal with the issue of extraterritoriality and provide the judiciary with clear guidance as to the proper reach of the securities laws and rules,to introduce the Conflict of Laws to resove securities laws jurisdictional conflict and the civil litigation as a main form in combating securities fraud abroad and extending of extraterritorial jurisdiction.Through the research of this paper,it can be seen that the extraterritorial application scope of a country's securities laws is essentially the distribution of power in the global securities regulatory system.The state must consider the reality of international political relations and the development of domestic securities market when formulating the regulation policy of cross-border securities trading.The elimination of regulatory arbitrage through substantive legal harmonization may affect the sovereignty,political system and particular values of a country.The conflicts approach accepts that regulatory nationalism is a fact of life,and sets for itself the more modest goal of achieving coordination among different national regimes.At present stage,our optimal strategy is to introduce Conflicts approach to build our country's securities laws extraterritorial jurisdiction system.