Research On Advance Compensation System Of Securities False Statement

In recent years,false statements and fraudulent issuance incidents have occurred frequently in China securities market.The most typical cases are the "Wanfu Shengke case",the "Hailianxun case" and the "Xintai Electric delisting case",which not only greatly damages the legitimate rights and interests of investors,but also endangers our securities market.Therefore,the system of advance compensation is introduced into the draft of the second draft of the Securities Law,that is,before the competent organ imposes an administrative penalty on the subject responsible for the false statement or before the peopleundefineds court makes the final judicial decision,The relevant intermediary institutions should reach a settlement agreement with the investors to compensate for the losses of the investors,improve the efficiency of dispute resolution,and stabilize the securities market quickly.After that,the subject of advance indemnification recovers from other responsible subjects.Based on the first case of fraudulent issuance and delisting,"Xintai Electric delisting case",this paper analyzes the problems existing in the advance payment system,and introduces the advanced legislative experience of foreign countries.In order to provide a useful reference for the introduction of securities misrepresentation intermediary institutionundefineds advance payment system in the future legislation of securities law in our country.This article is divided into five parts,including the introduction and four chapters of the text.It systematically discusses the problems of the advance payment system,the theoretical analysis,the experience of the extraterritorial legislation and the experience enlightenment to our country.The introduction mainly starts from the problem,the research value and the significance of the paper,and emphasizes the necessity of establishing the advance payment system in the current securities market of our country.However,due to the lack of judicial cases,and domestic and foreign scholars in advance payment system is not mature,lack of sufficient cases and literature support,there are some deficiencies in the article.The first chapter is to introduce the problems existing in the advance payment system.It is divided into four sections.Firstly,the advance indemnity system is introduced from the "Xintai Electric delisting case",the origin of the "Xintai Electric delisting case" is introduced,and then the problems existing in the advance payment main body are introduced.The liability is too strict.When false statements occur in the securities market,the investors involved are often large and influential.If the sponsor is insolvent,it may lead to a bankruptcy crisis and transfer the risks of the enterprise to the financial institutions.It could trigger systemic financial risk.In addition,the scope of application of investor protection funds is limited,can not be directly used for investors to pay in advance.At the same time,it is pointed out that there are some problems in the advance indemnity agreement.Firstly,the prior indemnity agreement has no enforcement power,which makes it difficult to effectively link up the advance indemnity agreement with the civil compensation litigation,and the problem of investorundefineds "two-way take-all" exists generally.There are also the following difficulties in the determination of the scope of liability for advance compensation: there is no clear legal definition of the system of advance indemnity,the identification of causality is also vague,and the standard of compensation time is difficult to unify.The most complicated one is how to recover compensation from other related liability subjects after compensation.The second chapter mainly introduces the correlation theory of the advancepayment system.The first section introduces the participants of the advance indemnity system and analyzes the advantages and disadvantages of the sponsor as the subject of the advance payment,and thinks that the investor protection fund should be regarded as the subject of the advance payment.In the identification of appropriate investors,it is not appropriate to simply exclude institutional investors.In addition to the subject and object of the advance indemnity system,it also includes the subject of supervision and the subject of settlement.The second section introduces the determination of the validity of the advance payment agreement.In the theoretical circle,there are three theories about the effectiveness of the advance payment agreement,namely,the theory of creation effectiveness,the theory of cognizance effectiveness and the theory of compromise.The last section introduces the foundation of operation of compensation in advance payment,that is,the determination of causality,and the amount of compensation is calculated by "afterwards method".The judicial interpretation does not give a unified stipulation on the time of compensation.In Xintai Electric case,SocGen Securities regards the correction date of two accounting errors as the key node to determine the compensation time,but not the "filing date" as the time node of advance payment.The third chapter introduces the extraterritorial advance compensation system and its reference to Chinaundefineds legislation.First of all,this paper introduces the compensation system of the sponsors in Hong Kong.After the secondary school chapter of the Securities and Futures Ordinance in Hong Kong provides for the investor protection fund system,it is used for the protection of investors and the protection of compensation for the fund.The Securities Regulatory Commission has obtained the right of investors to recover from other responsible subjects on subrogation.Secondly,it introduces the regulations of investor protection in American legislation from three aspects: the cognizance of causation in tort law,"securities class action" and "fair fund system".The fourth chapter systematically introduces the legal construction of the advance indemnity system,including three aspects: the first legal construction of the principal part of the advance indemnity,it is necessary to clarify the main body of theadvance indemnity liability and establish a two-track system of compensation payment.Expand the scope of application of the investor protection fund and apply it to the investors who have suffered losses due to false statements in the securities market,and at the same time set up a special compensation fund as a supplement to the main body of the advance compensation fund,Better protect the legitimate rights and interests of investors.In the procedure,the investor hearing procedure is set up,so that the investorundefineds will is fully reflected in the advance indemnity agreement,the third party supervision mechanism is introduced,and in the process of formulating the advance indemnity agreement,CSRC may send relevant staff to supervise the establishment of advance compensation agreements,and also provide the basis for the CSRC to make the next step of processing decisions.In the process of using the special compensation fund set up by the prepayment main body,a neutral third party,the China Securities Investor Protection Fund,shall act as the main body of supervision,and supervise and manage the use of the fund.The legal construction of the second advance indemnity agreement gives effect to the enforcement of the advance indemnity agreement,correctly deals with the relationship between the advance indemnity agreement and the civil compensation litigation of securities,and after the investor has reached an agreement with the prepayment main body,If a lawsuit is filed with a peopleundefineds court,the peopleundefineds court shall not support its claim.The third legal construction of the scope of liability for advance compensation will formally establish the system of advance compensation in the form of law,unify the time standard of compensation,and at last should clarify the issue of the right of recovery after compensation is paid by the main body of compensation.The key is to make a reasonable division of the responsibilities of the IPO intermediary and distinguish the responsibilities of the issuer and the intermediary.Under the premise of joint and several liability between issuer and sponsor,the sponsor's exemptions should be definited.