Misrepresentation In Securities Civil Liability

This thesis aims at making a research on civil liabilities of misrepresentation in the distribution of securities. Beginning with an investigation of theories and demonstration of securities law of various countries, the author researches the civil liabilities system of information disclosure, analyzes the deficiency of civil liabilities of misrepresentation in securities law of PRC and then advances his proposal to improve civil liabilities of misrepresentation and protect the interests of investors from the view of substantive and procedural law.Three are five chapters in the article. Chapter 1 is focusing on the definition of misrepresentation and compromises the following topics. First, this article holds that misrepresentation is the behavior of unjust and improper disclosing information and stating facts. Secondly, the author thinks that misrepresentation can be classified according to subject of misrepresentation, stage of information disclose, natures of misrepresentation and contents of misrepresentation. Thirdly, in the examination on the materiality of misrepresentation, considering the opinions of scholars both national and abroad., this article maintains that, in the environment of our country today, we should take standard of " influencing the decision of investor" as standard to determine the materiality of information and should pertain the legal form of this standard through stipulation by samples. Fourthly, the thesis analyzes the three performances of misrepresentation, which are false representation or untrue statement, serious misleading statement and omission to state material facts, and, considering the particularity of false forward-looking statement, suggested that we should built our own bespeaks caution rule and system of safe harbor referring to related institution of America.Chapter 2 examines the nature of civil liability of misrepresentation. First, as to the nature of civil liability of misrepresentation, there are doctrine of contractual liability, doctrine of contractual fault liability, doctrine of liability on tort and doctrine of stipulated liability. Second, The author thought that we should use the doctrine of stipulated liability on the basis of examination on the said doctrines.Chapter3, this thesis analyzes the constitutive requirements of civil liability of misrepresentation from the points of misrepresenting subject's fault, doctrine of liability fixation, harmful consequence and cautionary relation. As to the doctrine of liability fixation, the author think that, in line with the duty of care of different subject of misrepresentation, we should built three different standards consequently which are strict liability, fault liability, liability on willfulness. As to cautionary relation, this thesis maintains that it could be classified into cautionary relation on transaction and cautionary relation on loss.Chapter 4 has the discovery on the questions about system of relief on substantial law from the point of judicial practice, which include four parts. In the first part, this thesis holds that the proper defendant should including issuer of securities, initiator of securities, directors, supervisors and managers of issuer, securities dealer and its highofficial, intermediary organization and its liable person, and securities supervision commission and that each kind of the said persons have their own grounds for exemption. In the second part, the author defines the proper plaintiff and burden of producing evidence thereof by deferent means. In the third part, the author examines the damages and the method of computation therein from the status quo of scholarship. In the last part, this article focuses on the limitation of actions.Chapter 5 discusses procedural mechanism of civil liabilities of misrepresentation in securities issuance. In view of characteristics of civil liabilities in securities market, this chapter, based on a comparative study of group action of U.S.A. and representative action of China, puts forward feasible measures improving the represent...