| Legal responsibility refers to the reasonable burden that the relevant subject should bear due to the fact that it is violated by legal obligations and recognized by the society and can be confirmed and enforced by the specialized state organs.In legal practice,the most basic classification of legal responsibility is based on the legal norms of different natures,and the legal responsibility is divided into civil legal responsibility,administrative legal responsibility,criminal legal responsibility and other types according to the way of dividing the legal responsibility according to the departmental law.Securities legal responsibility,is a typical multiple legal responsibility.The legal responsibility is the embodiment of the legal responsibility function;different types of legal responsibility have different functional values.Under the pursuit of the value of modern law and multi-objectives,in order to deal with complex violations of laws and regulations,and to treat the same specific illegal facts,the law stipulates that the relevant responsible subjects bear two or more types of legal responsibilities at the same time;this is multiple legal responsibilities.Multiple legal responsibilities are a whole,of which different types of legal responsibilities have their own functions,support each other and work together.The realization of multiple legal responsibilities needs to be grasped as a whole and the mechanism operating principle in the field of system engineering should be used.Mechanism is the process and method of interaction and combination of various elements of the system,reflecting the principle of interaction of various elements of things;the operation of the mechanism is spontaneous and regular.In the social field,the operation of mechanisms is reflected by institutions and systems.Institutions are the static representation of mechanism operations.Systems are fundamental institutions.The process of institutions acting on society is the process of mechanism operations.Through the operation of mechanisms,the existence of existing institutions can be found.Mechanism repeatedly acts on the real society,forms new experience,constantly optimizes system,and pushes forward Social progress.The process from the generation to realization of legal responsibility is composed of the establishment,attribution,responsibility,legal supervision of the realization of responsibility,and feedback of the results of the realization of legal responsibility.Each link has a corresponding system specification.The United States,Chinese Hong Kong's securities legal responsibility implementation mechanism has the characteristics of typical multiple systems to realize the legal responsibility.The legal responsibility realization mechanism refers to the procedure,method or method for realizing the legal responsibility and making the legal responsibility to achieve close contact,mutual support and form synergy.The function of the multiple legal responsibility realization mechanism is to integrate and coordinate the operation of different types of legal responsibility realization systems,to co-ordinate the specific methods for the realization of different types of legal responsibility,to promote the realization of the value of multiple legal responsibility functions;the multiple legal realization mechanisms follow the importance value priority The principle of realization,the principle of integration of responsibility,and the principle of coordination of responsibility,including the connection mechanism of attribution,the integration mechanism,the integration mechanism of responsibility,and the supervision mechanism.The problems existing in China's current multiple legal liability realization mechanisms mainly include the following aspects:First,the effective connection of different types of legal responsibilities is insufficient.Judging from the related system of the liability of civil liability in China and the attribution of criminal liability,criminal liability is more important than civil liability;from the historical process of the principle of civil liability in China The latter people are derived from the prior treatment of civil liability;from the perspective of the legal facts that lead to criminal legal liability and civil legal responsibility,criminal legal liability and civil legal responsibility coexist at the same time,there should be no "sequential points";From the perspective of the relevant systems for the handling of administrative liability and civil liability cross-cases,the ways of connecting administrative imputation and civil attribution are diverse;from the perspective of administrative legal liability and civil legal liability,the different attribution procedures and actual operation,Parallel operation is the norm;the current administrative responsibility liability procedure in China and the criminal justice attribution procedure ignore the superposition of the different functions of administrative responsibility and criminal responsibility;in practice,administrative imputation has the priority of procedure initiation,criminal liability Result-oriented priority,the existence of two priorities triggers the practice of execution Class chaos.Second,there is a lack of necessary attribution and integration mechanisms between different legal responsibilities.There are insufficient criminal liability and civil attribution mechanisms,and the different functions of criminal liability and civil liability cannot be fully realized.The integration mechanism of administrative imputation and civil liability has principled provisions in substantive law,and there is no specific procedural law.Institutional arrangements;China's professional courts and comprehensive courts are only the centralized jurisdiction of the case,and there is no necessary integration of different legal liability attribution mechanisms.Third,there is a lack of linkage mechanism for multiple legal liability.Different legal responsibility commitment procedures are relatively independent and lack the necessary support;there are sometimes conflicts between different legal liability commitments with consistent responsibility content.Fourth,the legal supervision mechanism for the realization of multiple legal responsibilities is not functioning smoothly.In the connection of the criminalization of cross-criminal cases,the legal supervision mechanism is insufficient,the legal documents that stipulate the legal supervision procedures for execution of sentences are not high,and the initiation of the legal supervision procedures for execution is random,and the legal supervision is passive in the execution of the execution;The legal supervision function of the public interest litigation system in the process of realizing multiple legal responsibilities is not enough.The legal supervision function of administrative public interest litigation has insufficient support for the realization of the effect of civil public interest litigation.The existing problems in the realization of securities legal responsibility is a microcosm of the realization of China's multiple legal responsibility.The reason for the problems of the realization mechanism of multiple legal liabilities in China lies in the following aspects.First,the realization mechanism of different types of legal liabilities is exclusive,the realization mechanism of different types of legal liabilities operates independently,and the establishment and realization of multiple legal liabilities are not integrated.Secondly,the multiple internal imbalances legal responsibility implementation mechanism,at the legislative level,multiple systems to realize the legal responsibility coordinated operation related institutional supply,support mechanism of different types of legal liability to realize collaborative operation,procedural law imperfect,different areas of the multiple legal responsibility implementation mechanism has obvious departmentalization,policy tendency;In practice,different types of realization mechanisms of legal responsibility are subject to the operation of judicial organs,and over-rely on judicial organs.The realization of legal responsibility shows the tendency of "judicentrism",which is the direct cause of the practical dilemma of multiple realization mechanisms of legal responsibility.The administrative subject plays an insufficient role in the realization of multiple legal responsibilities related to administrative legal responsibility,and there is a deviation in the implementation of the concept of modern administrative rule of law by the administrative subject.Thirdly,there is a lack of effective control over the operation of the realization mechanism of multiple legal liabilities in China.In the process of operation of the realization mechanism of multiple legal liabilities,the subject of control is not clear,the mode of control that the subject of control can adopt is not standardized,and the information feedback response is not smooth in the process of operation of the realization mechanism of multiple legal responsibilities.The perfection of China's multiple legal responsibility realization mechanism should position its objectives in the following three aspects:one is to promote the realization of civil legal responsibility first;the other is to promote the participation of multiple legal responsibility participants to play a more active role;the third is to strengthen criminal legal responsibility To achieve the guarantee of the realization of other types of legal responsibilities.Under the basic structure of the multiple legal responsibility realization mechanism,select multiple legal realization mechanisms in specific fields to conduct experiments to form demonstration results;on this basis To strengthen the overall design of the multiple legal responsibility realization mechanism,improve the basic system supply related to the multiple legal responsibility realization mechanism,and dynamically optimize the operation of the multiple legal responsibility realization mechanism.In Chinese securities legal responsibility implementation mechanisms,for example,should improve the securities supervision and administration department of law enforcement authority mechanism,guarantee securities administrative legal responsibility implementation effect;In the process of administrative law responsibility implementation,linkage promoting other types of legal responsibility.. |
PDF Full Text Request