Study On The Imputation Principle Of Civil Liability Of Manipulation

Manipulating the Securities Market, a type of Securities fraudulent action, has become a chronic disease of the Securities Market. The current modification of the Securities Exchange Law adds the regulations for civil liability of manipulations, which symbolizes the establishment of its system. This thesis introduces the basic theory of manipulation action and its civil liability system; and by introducing, appraising and analyzing the legislation of the imputation principle of the manipulation civil liability in the related countries and areas, and analyzing the defects of our present civil liability system of the manipulation, thereby the thesis propose many suggestions of improving and perfecting our Chinese present the imputation principle of civil liability system of the manipulation actions.This thesis is divided into three chapters. Chapter one mainly focuses on the theory research of the manipulation action and the discussion of the necessity for improving and perfecting its civil liability system. The manipulation actions include wash sales, matched orders, manipulation by actual purchases, pool operation, stabilization, spreading rumor and false information, and so on. Manipulating the Securities Market, artificially distorts the normal prices of the Securities Market, causes price severe deviation from value and misleads the flow of capital, which can not truly reflect the relationship of supply and demand of the market; it infringes upon the interests of the investors and shakes the confidence of the investors; it damages the rule of free competition and blocks the rule of optimal allocation of resources of the capital market; it leads to and enhances credit crisis of the Securities Market, aggravates the financial risk, causes economic crisis, and even results the turbulence of the society;Meanwhile, the Securities Market manipulation can also cause corruption and many other negative effects. Therefore, the Securities exchange laws of many countries normally proclaims in writing to forbid the manipulation actions and stipulates the severe punishments to the manipulators. The standardization, restriction and supervision of the manipulation, is system project of comprehensive measures that needs the combination of criminal punishments, administrative punishments and civil compensation. As the major component of legal responsibility system for the manipulating the Securities Market, the civil compensation, plays such a tremendous role that administrative punishments and criminal punishments can not replace. In essence the civil responsibility for the Securities Market manipulation is a kind of tort responsibility; therefore it needs to possess of the responsibility constitutive elements of tort responsibility. The implement of manipulation is the logic beginning of the civil tort liability of the Securities Exchange, and normally the manipulators try to seduce the investors to transact the exchange through a positive manner. The objective intent of the manipulator is the basis of liability fixation that the manipulator must undertake the civil compensation liability; basis on the particularity of the Securities exchange and the requirement of the rule of the consistency between subjection and objection, the cognizance of objective fault of the manipulator in the related countries and areas adopts the standards of the subjection of the faults, and carries out the rule of fault constructive responsibility. The fact of the investor's loss is the direct reason of the civil compensation responsibility. The cognizance of the range of the losses is the essential factor that the lawmaker can not ignore during his harmonizing the confliction of each Securities Market party's interests. The cognizance of causation is most difficult to manage among the constitutive elements. Because of the particularity of the Securities exchange; the cognizance of causation is more complex comparing with the cognizance of the common tort; basis on the consideration of fairness, justice and the social policy, normally the lawmaker stipulates the cognizance of causation as"constructive causation"; in other words, the law directly regulates: constructing that there is the causation between manipulation and tort, the defendant is to show the evidences to cut the chain of the constructive causation and block the ascertain civil responsibility. Chapter two is the introduction of related legislation in countries andareas which have the advanced Securities Exchange Law legislation, such as America,England,Chinese Hong Kong and Chinese Taiwan. The Securities Markets of these countries and areas come through a long time of development, and accumulate abundant legislative and judicial practice experiences.In the third chapter, it mainly analyzes the situation and problems of our Chinese present civil liability system of manipulation action. Our Chinese Securities exchange law in effect have clearly stipulated the regulations of the civil compensation responsibility for the manipulation action, which shows the numerous investors many hopes that they can recover their losses from the manipulators by litigating the manipulators, whereas the regulations for the exact type of the manipulation action is still incomplete, and cognizance standards is comparatively vague, and it is lack of maneuverability. Therefore, the author proposes that: Firstly of all, fractionize the cognizance standards of all kinds of manipulation actions, and provide the courthouse definite directions; secondly, clearly stipulate: subject of litigation,form of litigation,method of compensation,range of compensation and procedure of pre-litigation and limitation, which in deed realize the civil compensation lawsuit against the manipulators in a situation that there are laws to go by and they must be obeys.