The Research On The Burden Of Proof In The Securities Tort Litigation

The security infringements are acts that appear in the process of the issurance and transactions of securities, violate the duty stipulated in the civil law and securities law, damage the property of the investors by way of action or omission, and the infringers ,with their faults, should bear relevant civil liabilities. The security infringements belong to the commercial infringements , and in essence the special infringements . the general principle of the presumption of fault should be applied . The typical security infringements are as follows: misrepresentation , insider dealing , manipulation of the securities market and deceiving the clients.the elements of the tort liability include the infringers'intention of gaining illicit profits or minimizing losses , the existence of the illigal acts and the relevant damages , the causal relationship between the illegal acts and the damages . great variaties of these violations have caused tremendous damages to the vast number of investors and disrupted the normal activities of the securities market .Allotment of burden is a kind of power that is enjoyed by the state authorities which distribute the burden between the plaintiffs and the defendents in advance according to a certain standard . The paper has searched the parties'distance from the proof ,the ability of getting the proof , the aim of the substantive law , and has inspected the securities law and regulations of some foreign countries and our Hongkong and Taiwan Districts , made a reasonable distribution about the burden in the securities civil litigation . the author thought that in the securities civil litigation of four typical kind of torts , we should make a breakthrouth of the traditional rules about the allotment of burden ,distrbute part of the burden of the plainthffs'to the defendents --that's the Shifting burden of proof which will dramatically minimize the investors'burden of proof , protect their legitimate rights and interests :the plaintiff should prove two elements of the existence of the illigal acts and the relevant damages ,and the defendents should prove the other two elements of the causal relationship between the illegal acts and the damages ,the infringers'intention of gaining illicit profits or minimizing losses .