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Research On Some Issues Of The Civil Responsibility Of Misrepresentation In The Securities Market

Posted on:2010-02-17Degree:MasterType:Thesis
Country:ChinaCandidate:J W ZangFull Text:PDF
GTID:2166360272498453Subject:Law
Abstract/Summary:PDF Full Text Request
In market economy, security market plays an important role in distributing the resources. For a security market to bring its role into full play, honesty and fairness is the essential foundation. Misrepresentation behavior is a great damage to honesty and fairness. Therefore, it is of great necessity to crack down on Misrepresentation behaviors. Misrepresentation behavior harms the investors' right to participating stock transaction fairly. It jeopardizes the assignment of interests. Therefore, it is strongly demanded that civil responsibility, which take compensation as the major way of punishment, intervenes in order to restore the transaction to its original, unharmed state. The function of securities civil responsibility system is to dispel the conflicts in securities market and to correct the distorted interests relation caused by Misrepresentation behaviors, so that the true situation can be reflected and the interests of both the investors' and the listed companies' can be protected. Securities civil responsibility system can also take care of the needs of the state as well as the participants who provide their service for the securities market. As a result, all participants in securities market can obtain their interests in a normal risk system.China's legislation of securities is based the macro-goal of protecting securities market and serving the reformation of enterprises. However, the damages caused by illegal behaviors in securities market do not draw enough attention from the public investor, who pay much of their attention to administrative and criminal responsibility. Administrative and criminal responsibility cannot dispel the conflict of interests , nor eradicate Misrepresentation behavior. Because Misrepresentation are motivated by economic interests, civil responsibility is the best method to inhibit them. Therefore, it is of great necessity to strengthen the role of civil responsibility to crake down on Misrepresentation behavior.The research object of the present thesis is civil responsibility of Misrepresentation in securities market. The thesis is organized with "tort liability" as the core. With the view of the current situation of China's securities market as well as the newest version of "Securities Law", this thesis aims to probe into some fundamental theories and special cases in the determination of civil responsibility of Misrepresentation behaviors. Based on these researches, this thesis proposes some technical and legal rules concerning the civil responsibility system for Misrepresentation in securities market. It is hoped that these suggestions can help improve the civil responsibility theory in securities market and inhibit Misrepresentation with economic means. As a result, the securities market can have a healthier development under the regulation of both legal and economic rules, balance interests between investors and listed company, achieve the goal of developing economy and reforming enterprises.The main text body consists of three chapters: The Determination of the Civil Responsibility of Misrepresentation. The two-side Subject of Civil Responsibility, and An Analysis of the Essentials of the Civil Responsibility of Misrepresentation. By exploring some controversial cases and some newly-appeared problems, the author expresses some of his opinions on the civil responsibility of Misrepresentation.The first chapter defines and discusses the nature of the civil responsibility of Misrepresentation. Firstly introduces the definition and characteristics of Misrepresentation. Through the analysis of the definition of the Misrepresentation, its connotation is clarified. The behavior patterns of Misrepresentation are classified into four types. For the controversial type of false prediction, the author makes a negativity appraise, which maintains that false prediction should not fall under the category of the illegal Misrepresentation for the time being. In addition, the author broadens the scope of the objects of false statement to include both voluntary and compulsory information disclosure. This could broaden the scope of protection and inhibit Misrepresentation better.In second half parts of chapter one, introduce problems about civil responsibility. The nature of responsibility determines the composition of responsibility. It also determines the best way to protect the investors' interests. According to its violation of legal duty and related articles in Securities Law, this thesis considers Misrepresentation as tort liability. This classification can not only best protect the investors' interests, but also facilitate the operation of procedures. In the mean time, the civil responsibility of Misrepresentation is considered as a special kind of tort liability; therefore its application of law should be specially operated. This can reduce the difficulty of determination and facilitate the realization of compensation.The second chapter analyzes the two parties in civil responsibility of Misrepresentation, especially the inclusion and exclusion of certain special subjects. For some subjects which are excluded by Several Regulations as amends-obliges, especially the subjects who are involved in other illegal issues in securities market, the author proposes that these subjects should also be included as amends-obliges. By comparing the new and the old version of Securities Law and analyzing the participants of the securities market from the point view of economic interests, and based on the principle of "those who benefits should take responsibility", this thesis proposes that Securities Supervision Committee and the mass media, which have great influence upon securities market, should also be included as possible subject of damage compensation, along side with the other seven types of subject of damage compensation.The three chapter analyzes the essentials of the civil responsibility of Misrepresentation. As the civil responsibility of Misrepresentation has been categorized as a special type of tort liability in former chapters, its composition and analysis method should be different from common tort liability. As to the doctrine of liability fixation, the non-fault principle is applied to special two kinds, and the presumed-default liability principle is applied to the five types. Besides these, either non-fault principle or the presumed-default liability principle can be applied to Securities Supervision Committee and the mass media depending on the specific situation. As to the demonstration of causality, the author designs his own method—exclusion plus enumeration, as a complement to the traditional method. The newly proposed method can simplify the procedure of demonstration. As to the determination of damage, the author's opinion is different from the Several Regulation, in that he classifies the reasonably expected interests into the scope of damage, and designs a model to calculate the reasonably expected interests with the weighted average model. This design is based the purpose of the investors' as well as the actual situation of China's securities market. Besides, there are many representations of the phenomena in the realm of the Contract Law in securities market. The protection of the reasonably expected interests can encourage more people to acknowledge and participate in China's securities market. It is believed that this pattern can be realized and promote the prosperity of China's securities market.
Keywords/Search Tags:Misrepresentation, Tort Liability, Economic Interests
PDF Full Text Request
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