An Study On The Civil Action Of Securities Misrepresentation

From the State Council was authorized by the NPC adjusted the relevant provisions of the securities law and carried out the registration system of stock issuance on December 27,2015,to extended authorization until February 29,2020 when the authorization expired,then on March 1 this year,the registration system was fully implemented in the new "Securities Law".Since then,China's registration system reform achieves a step-by-step implementation of no-slot joint.It is noteworthy that the registration system reform is a systematic engineering,it not only requires the information disclosure of public company more detailed and more comprehensive,the regulatory focus has also shifted,all of these put forward higher requirements for the ex-post regulation means which represented by misrepresentation civil action.In the civil action arising from the misrepresentation unlawful act by public company,in addition to the private interests of investors,especially the interests of broad small and medium investors,the national public welfare and social welfare also need to be protected.But through the literature study and empirical analysis finds that our existing civil action for misrepresentation of securities market can not effectively protect the private interests of broad small and medium investors,the related public interests are also lacking protection.As a consequence,the present supply of misrepresentation civil action needs to be made up urgently.The purpose of this paper is to analyze the scope of interests protected by civil action of securities misrepresentation and the problems existing in civil action of securities misrepresentation in our country at present,combined with the development trend of civil action of securities misrepresentation abroad,to find a suitable way for the development of civil action of misrepresentation in China's securities market.On the basis of literature research and comparative analysis,according to the legislation process of environmental public interest litigation and consumer public interest litigation in our country and the public interest tendency of the development of securities civil litigation in the world,this paper puts forward to establish the civil public interests litigation system of misrepresentation in securities market,in order to realize the relief of public interests and private interests of securities infringed by the misrepresentation by public company.The basic goal of the civil action of securities misrepresentation is to fill the loss of investors,but the public interest litigation is difficult to solve the distribution problem of the amount of damage claim,so this paper proposes to use for reference the "two-stage" model of damages litigation in the field of consumer protection in Brazil and Japan,trying to construct the securities market's two-stage litigation which includes misrepresentation public interest litigation and private interest litigation.The securities market's misrepresentation two-stage litigation's aim is to reduce investors'resistance to claims and enhance their confidence in claims through the interaction and effective cohesion of the public interests litigation and the private interests litigation.At the same time,the public interests protection of the violation by the misrepresentation unlawful act runs through from beginning to end,thus maintenance the relevant interests to the maximum realization.The most innovative part of this paper is the second-order litigation,which is based on the litigation mode in the field of consumer protection and the particularity of the civil action of securities misrepresentation.This paper not only innovatively proposes the securities market's misrepresentation two-stage litigation,but also proposes that the claims should be the core of this litigation.Specifically,on the one hand,the inaction of claim of public interest litigation correct the misrepresentation unlawful act timely and reduce the impact on the capital market,on the other hand,the common dispute in the misrepresentation civil action is confirmed by the confirmation of claim of public interest litigation,which removes the obstacle for the investor's private interest compensation action in the second stage and realizes the basic value of the investor's loss compensation.The small and medium investors are a majority in the China's securities market,The construction of the two-stage litigation is helpful to balance the unequal power of the two parties in the misrepresentation civil action,which is fit in with the development trend of attaching importance to the investor protection in securities market.In addition,this litigation also avoids the suspicion that class actions or other litigation violate the due process,the lawsuit rights of the aggrieved investors,public companies and the subjects in public interest litigation are effectively exercised in the litigation,in accordance with the value pursuit of due process.Finally,in the concrete conception of the securities market's two-stage litigation,this article also put forward own views in the light of some specific details from the angle of extension of subjective scope of res judicata and determination of trial order.Meanwhile,in order to avoid the successful judgment of investors turning into"judicial ious",this article proposes to set up a two-stage litigation's compensation fund system to guarantee the execution of the successful judgment on the basis of reference to the successful experience of investor protection fund and advance compensation fund.