From Securities Law Perspective On The Direct Supervision

Direct selling is a mode of business operation, including monolayer direct selling and multi-level direct selling. According to undercount, there are more than three thousand direct selling enterprises in china at present. The direct-selling numbers of each corporation are varying from about ten thousand to hundreds of thousand. The same with investor in securities, they have social public character strongly, their profit also need to be protected. However, the direct-selling supervision system in China is not perfect enough to satisfy the demand of the market economy which is developing rapidly. The problems of protecting the direct-selling participant system in China consist of too limited application scope, unclear requirements, conflicted judgments by Courts, and etc. The dissertations in academy describe multi-level direct-selling from destroying the fair competition and management order of market; even negate it from illegal fund raising and illegal accepting individual deposit. This dissertation taking no account of the realization of goods, but from hunting out how to protect the profit of direct-selling participant, using some related standards such as"howey test"of America, analyze fund raising of direct-selling and estimate that the direct selling especially multi-level direct selling should be controlled by securities law according to some cases happened recently in our country. This dissertation also analyze the legal question about using direct selling to direct finance, advising our legislature and government attach importance to the phenomenon of existent multi-level direct selling at present and widen the supervision scope of securities law.The supervision of direct selling is discussed systemically in comparative study method in the dissertation in order to arouse more attention and encourage practical solutions to the problems.In the first part of the dissertation, a description on the definition and features of the supervision of direct selling are presented. Then the juridical relation between the member of direct selling and the direct-selling corporation characteristics are analyzed based on the study of its origin and evolvement.In the next part, a new supervision pattern of direct-selling is put forward to after an overall review of legislation and cases in China and America, and an analysis of theories and principles in this field.In the last part of the dissertation, the deficiency of direct-selling supervision are also analyzed, and then a new legislation proposal is envisaged, based on the situationand demand of China with the successful legislative experiences of American jurisdictions for reference.The most remarkable features of the dissertation consist of: The first is the comparative method taken in the dissertation. Compare the differences of legal systems in China and America, and probe the track and features of development of direct-selling.The second is the positivism method taken in the dissertation. The direct-selling is discussed not only theoretically but also in way of positivism. The legal system and relevant cases in American law and China law are also reviewed in order to take out some principles scientifically.The third is a new supervision pattern of direct-selling produced by the author. There is"investment contract"between the member of direct selling and the direct-selling corporation according to the"howey test"are presented and expounded in the dissertation.The last is the specific legislative proposals offered in the dissertation. With the intention to improve the legislation and practice of direct-selling supervision, the deficiencies are pointed out based on the study of positivism and comparison, and the specific legislative proposals are put forward in the dissertation.