| The debarment of the securities market restricts or deprives the debarred person of the qualification or legal capacity for rights to serve as a director,supervisor,senior manager of a listed company or to enter the securities market to engage in relevant securities business.Compared with other administrative means to curb illegal securities acts,it is more severe,especially the life-long debarment of the securities market.Because of its relatively severe nature of right restriction,people often regard it as punishment for the debarred person,and some people even think that its nature should be criminal penalty,and yet life-long debarment of the securities market is“death penalty”.Then people turn to question its legal nature and legitimacy,and think that it is “punitive” in nature.People also think that the debarred person will fall into “double jeopardy” if it is used together with administrative punishment,criminal penalty and so on.Therefore,it is improper.Because of the vague understanding of the legal nature of the debarment of the securities market,the securities regulatory authorities themselves begin to “fear” this power and are unwilling to use this power easily.The most typical example is in the United States.Since the enactment of Sarbanes-Oxley Act,SEC has obtained independent power to issue debarring orders,whereas the frequency of debarment of the securities market decreased instead.Based on the deep understanding of the problems existing in the process of using the power of the debarment of the securities market in the practice of China’s securities regulatory authorities,this paper attempts to explore the power of the debarment of the securities market itself and the rules in its operation.As the research target of this paper,the debarment of securities market has a unique adjustment method facing the behavior at present and in the future.What is restricted or deprived is legal capacity of the debarred person,and it also has unique function and value that other legal acts do not have.It should be regulated as an independent legal act.There has been a dispute about the legal nature of the debarment of the securities market.The academic circles often based on the traditional administrative law theory,trying to use the theory of administrative behavior type,trying to put it into the existing traditional administrative behavior.As far as its essence is concerned,it is a utilitarian way to deal with it.Although it is simple,it fails to solve the fundamental problems,resulting in theoretical confusion and practical problems.Just because of the existence of the dispute,the legal nature of the debarment of the securities market is still in the air.The securities regulatory authorities chose to avoid the problem in the regulatory enforcement action,which resulted in the problem being kept on hold.This problem can’t be avoided,and we can’t pass over it.Only by fundamentally defining the legal nature of it,can we better construct the system of the debarment of securities market.The debarment of the securities market cannot be “punitive”,which should be distinguished from other administrative acts such as administrative punishment and criminal penalty.We should accurately grasp the nature of the debarment of the securities market,remove the “punitive” nature and maintain its “remedial” functions.The debarment of the securities market is related to the restriction or deprivation of legal capacity of the debarred person,and its legitimacy must be solved.There is a great controversy in the academic circles about the legitimacy basis of the debarment of the securities market.Generally,the academic community will explain its legitimacy with “public interest”,but this is problematic.This paper holds that the legitimacy of the debarment of the securities market cannot only be based on the protection of “public interest” or the measurement of interests in economics.Because of the dominant position of human beings,it is difficult to measure the weight of individual rights and public interests,especially in economic interests.Especially for the legitimacy of life-long market prohibition,the debarred person may face the economic problem of how to “live” due to unemployment.Based on the survival needs of individuals,it is difficult to assert that the public interest must take precedence.Therefore,it is difficult for the theory of public interest and the theory of interest measurement to explain the legitimacy of the debarment of the securities market.The legitimacy of the debarment of the securities market is based on the expectability of the debarred person’s own future legitimate behavior.We should focus on the present and future,rather than the past misconduct of the debarred person.Otherwise,it will be no different from the punitive measures such as administrative punishment and criminal punishment,so there is no need to exist alone.Only by returning to the debarred person himself and starting from the perspective of the expectability of the individual’s legitimate behavior,can we understand the legitimacy of the debarment of the securities market.The applicable conditions for the debarment of securities market are an area that needs special attention.The theoretical research or practical experience of the United States in this area is relatively sufficient,especially the cases in this area are relatively more,which is worth our in-depth analysis and reference.U.S.mainly focuses on the debarred person’s current “unfitness” and future “possibility of improper behavior”,rather than only facing the past illegal behavior of the debarred person,and the applicable conditions for the debarment of securities market are dynamic.Through a large number of practical cases,courts in the United States and SEC set various applicable conditions for the debarment of securities market,which is more scientific and reasonable.Securities regulators are always trying to expand their power,and SEC has been lobbying Congress to try to reduce the applicable conditions or standards of the debarment of securities market.When the Sarbanes Oxley Act was introduced,Congress also tried to reduce the conditions for SEC to apply the power to issue debarring orders,but in fact,the court has not lowered the exercise standard so far because of the existence of the “six factor test method” and other “multi-factor test methods”,so as to effectively prevent the “arbitrariness” in the exercise process of the power to issue debarring orders.On the contrary,China has not carried out in-depth research on this issue so far,and especially needs to be strengthened.In our country,“violation of laws and regulations and provisions of the CSRC” and “serious circumstances” are the applicable conditions for the debarment of the securities market,which is a static condition for the past misconduct of the debarred person.Based on the characteristics of “non-punitive” and “remedial”,China needs to learn from the experience of the United States to realize the transformation of the applicable conditions from static to dynamic.In foreign countries and regions,the implementation of “directors’ duties” can be divided into public execution and private execution.The debarment of the securities market belongs to the implementation of directors’ duties in terms of its essence,but its executive body are all public sectors,and there is basically no private execution.In the United States,the main body of the implementation of the debarment of the securities market was the court at the beginning.The Securities Regulatory Commission(SEC)has no independent power to issue debarring orders,which can only be obtained by applying to the federal court.Since the Sarbanes-Oxley Act was introduced,SEC has obtained the independent power to issue debarring orders.In order to become an independent executive body to issue debarring orders,CSRC needs to meet certain conditions,such as redistribution of legislative power to CSRC,active law enforcement environment,independent and sufficient discretion,and be able to make a scientific judgment on whether the object to be debarred has the possibility of “future misconduct”.Since China’s securities regulatory system learn from the United States,CSRC has independent power to issue debarring orders early,but the existence is not necessarily reasonable.CSRC,as the main executive body of the debarment of the securities market,has some problems in the vertical and horizontal power allocation,which urgently needs to be improved.The determination of the scope of application objects is related to the exercise boundary of the power to issue debarring orders and the precise implementation of the debarment of the securities market.There should be a boundary for any power to be exercised,especially for the power to issue debarring orders.In the United States and the United Kingdom,the scope of debarment of securities market is relatively narrow,mainly composed of directors,senior managers and other managers with entrusted responsibilities of public companies.The scope of application of the power to issue debarring orders is strictly controlled.There are a series of subjective and objective factors in the scope determination,which can not be easily expanded.In order to grasp the scope of debarment of securities market,we should adhere to the analysis of subjective and objective elements.Subjective “fraud” and “intention” are the core elements,but “negligence” and “fault” can also be considered as factors to determine the “inappropriate” of the debarred person under certain conditions.In the objective aspect,we should explore the objective basis of the debarment of securities market from the objective factors of the debarred person,focus on identifying the debarred person as “not suitable” and having “the risk of future misconduct”,and adhere to the consideration of the relevant factors such as professional relevance,behavior relevance,laws and regulations relevance.In order to determine the range of the debarment,we should especially emphasize the application of the principle of proportion.China’s “Securities Law” on the scope of application of the debarment of securities market is too broad,and there is a trend of gradual expansion in recent years.China’s new Securities Law(revised in 2019)even includes ordinary investors engaged in securities trading in the secondary market as debarred persons.It is necessary for China to pay attention to this issue and clearly define the scope of the objects debarred from entering the securities market.In the process of the implementation of the debarment of securities market,the debarred person may evade or evade the debarment of securities market,which is also a problem that needs to be solved.We should guarantee the compulsory force and binding force of the debarring orders,and remove some obstacles in the implementation of the debarment of securities market.Therefore,it is necessary for China to establish a system of identity registration and publicity for those who are debarred from entering the stock market,and to clarify the punishment measures for violating the debarment measures.As a kind of right restriction behavior,the debarment of securities market should adhere to its “non-punitive” and “remedial” system positioning,ensure its precise implementation,and meanwhile be restricted through the whole process.It should not only be conducive to the supervision,but also to the protection of the legitimate rights of the debarred person.Before the implementation of the debarment of securities market,we should adhere to the concept of “responsive supervision”,“forward-looking” and “conditional exemption” to ensure prudent implementation.We should establish procedures of “suspension” and “conditional exemption” to ensure that the debarring order is issued only when it is absolutely necessary.During the implementation of the debarment of securities market,we should strengthen the control and restriction of the debarment of the securities market,prevent the abuse of the power to issue debarring orders,and strengthen the judicial review of the debarment of the securities market.Administrative power without judicial control is dangerous.In addition to a small number of debarring orders which are named as“debarment of securities market”,other so-called “securities supervision and management measures” and “disciplinary measures” with the nature of the debarment of securities market have not yet been included in the scope of judicial review.Even for the debarring orders named “debarment of securities market”,which has been included in the scope of judicial review,the court’s review of it is the same as its administrative punishment,only relying on the judgment of the seriousness of the past illegal acts of the debarred person.The essence of this kind of “backward looking” approach,which only faces the past of the debarred person,rather than the“forward looking” approach,which is based on the “unsuitable” and “risk of improper behavior” of the current and future of the behavior,is fail to consider the independence of the debarment of securities market.The consequences are also serious,and it is easy for the debarred person to fall into the “double jeopardy”.In order to protect the rights of the debarred person,the administrative acts with the nature of the debarment of securities market should be included in the judicial review.In the aspect of judicial review,we also need to base on the unique nature of the debarment of securities market,and establish appropriate standards of proof with differences,so that we can really restrict the power to issue debarring orders by judicial review,and achieve the purpose of the debarment of securities market.After a period of execution of the debarring orders,we should give the debarred person the opportunity to redeem themselves.Based on the essence of the “remedial”nature,we should strengthen the dynamic monitoring of the “unsuitable” situation of the debarred person,establish the timely revocation procedure of the debarment of securities market,and regularly evaluate the “unsuitable” situation of the debarred person.We should also adjust the judgment of whether there is “the risk of future misconduct” in time,and timely allow the debarred person to participate in the securities market again.In terms of procedure,we can learn from the mature experience of the United States on the debarment of securities market,the debarment of lawyer industry and the debarment of government procurement market in the United States,India and other countries.China is still blank in this respect,so we should establish a scientific and reasonable revocation procedure for the debarment of securities market,clarify the revocation standards for the debarment,adhere to the“personalized test”,remove the measures of debarment for the debarred person in time when the conditions for lifting the debarring orders are achieved,and give the debarred person a “second” opportunity to “turn back”.Only in this way can we fundamentally solve the problem of the legitimacy of the debarment of securities market,especially the life-long debarment. |
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