Legal Construction Of Social Responsibility Of "Gatekeeper" In Securities Industry

Whether in legislation or in practice of financial industry, risk prevention is the everlasting subject, especially in securities markets. "Gatekeeper" system is a shortcut, the progress of financial bodies’establishments, mergers and bankruptcies can be supervised through regulate "Gatekeepers", and antecedent examine and post-supervision can be accomplished through regulate transaction behaviors of "Gatekeepers" controlling capital market.The "Gatekeepers" of securities industry mainly include accounting firms, investment banks, law firms and rating agencies, etc. Generally, the audit reports, ratings and legal opinions provided by them shall be objective and authentic, and shall correctly guide the investors and the market, because these "Gatekeepers" rely on reputational capital to exist and develop. However, from "Enron scandal" to the global financial crisis, "Gatekeepers" no longer protect investors’interests, they associate with the issuers instead. The basic reason lead to this result is that the acquirable interests violating rules the "Gatekeepers" of securities industry may get have far exceed the reputational capital they accumulate in a long-term. The dysfunction of the system result from the lost of morality. From a legal perspective, it’s the absence of social liability. Though various countries regulate companies’social liabilities in their company laws, and we regulated companies’social liabilities in article three of our company law, they are too ambiguous and unclear. There is no special regulations aimed at our securities industry, especially on violating consequences. The absence of regulations result in the current situation of single punishment mode and underweighted punishment result.As to "Gatekeepers" of the securities industry, the government supervision "visible hand" cannot completely supervise them, and the repeat dealers experienced too much links and deals, which supervisors do not understand as deep as "Gatekeepers" do. If a self-protection, self-supervision system from "Gatekeepers" point can be designed, before-and-after risks can be effectively controlled, and this system shall be social liability legal system. Based on its publicity in social attribute, promoting its social liabilities consciousness, and during social liabilities legal design, suppress the greedy motivation of other capital market deal bodies, "Gatekeepers" of securities industry shall maintain their reputation prudently again, maintain the achievements of obeying rules and protect reputation through incentive system, and strictly punish violating behaviors damaging their reputational capital through restraint system.