A Basic Research On Civil Liability In Security Transaction

The system of civil liability in security transaction is very weak and lack stipulations in our country. The deep-step reason which leads to this kind of state is the loss of legislate ideology. However, legislate ideology plays a decisive role on the legislate technique's selection and application. For this reason, the thesis from the angle of legislate ideology, delve basically into the foundation, the function and the principle of construction of civil liability in security transaction.The thesis is divided into six sections:Section 1 is preface.Section 2 is about the proposition of problems and limitation of concepts. The loss of legislate ideology is the key point of the problem, which results in the imperfection of civil liability in security transaction. This conclusion is based on the simple analysis to the phenomenon of irregularity in the security market in our country. Afterwards the author gives specific definitions to main concepts which are related to this thesis.Section 3 mainly deals with the foundation of civil liability in security transaction. The author offers three angles to further her research: philosophy, the science of law and economics as well. The author put forward the idea that the foundation of philosophy to the existence of civil liability in security transaction is its possibility, obligation and justification. This is the most ultimate problem that is relevant to the rational existence of civil liability in security transaction. As to the law basic, the thesis analyses it from two main aspects: the foundation of Contract Law and the foundation of Tort Law. The foundation of CL is supported by theories of contract-breaking responsibility and misfeasance responsibility in contracting; thefoundation of TL is the civil tort liability and it gives the analysis to the causation and the principle of imputation when the civil tort liability is tenable. Analysis to the foundation of economics is tried by means of these theory: asymmetric information, externality, market risk and efficient capital market.The fourth section focuses on the function of civil liability in security transaction. By means of functional analysis, this section put civil liability in security transaction into the whole society and establishes the function system, which is constructed by the legal function and the economic function. The legal function is usually embodies in three aspects: compensation, precaution and punishment. The economic function is shown in two aspects: rationally allocating recourses and improving economic profits. Moreover, this section makes a discussion about the procedural mechanism of civil liability in security transaction by using relative theories of litigation mechanism and non-contentions mechanism.The fifth section is about principle of civil liability in security transaction. This part gives discussion and makes statement about the principle of certainty, guarantee right, distinguishment and independence, which are all related to the construction of civil liability in security transaction. The principle of certainty mainly refers that civil liability in security transaction must hare clear definite. The principle of guarantee right is that the establishment of civil liability in security transaction mast be live with the safeguard of the civil right and provides the legal relief. The principle of distinguishing refers to the distinguishment based on different standards of objects, behavior, principle of imputalion and establishing manners of civil liability in security transaction. The principle of independence means that civil liability in security transaction is independent to the administrative liability and also the criminal liability, three of them can not mix up mutually. Each of them can not be replaced by the other and none of them can be remitted.Section 6 is concluding remarks.