Thoughts On The Construction Of Securities Support Litigation System

At present,for securities torts in Chinese securities market the interests of the investors to suffer damage of shoe have occurred,such as false statement of securities fraud in particular,the securities industry innovation continuously strengthen must be established on the basis of protecting minority investors' rights and interests,if the lack of strong afterwards control system to safeguard the rights and interests of investors to maintain their own rights,validity and stability of the capital market in China will surely suffer from serious threat.However in securities tort civil relief in China still exist many problems to be solved,the first is our country current relevant laws and regulations on civil liability of securities market to ignore,"securities law" and other laws and regulations for the stock market the punishment of violation behavior is still mainly on administrative means,after the lack in view of the rights and interests of investors by supporting the judicial relief system.Secondly,the majority of Chinese investors are small and medium-sized investors.Their ability to provide evidence is extremely limited and it is difficult for them to bear high litigation costs.The gap between their strength and the main body of securities infringement is too large.However,our current mass dispute-settling system not perfect,the practice has many restrictions,in terms of representative lawsuit system,in 2002 the supreme people's court promulgated by the supreme people's court about to accept the securities market false statement civil tort disputes caused by notification concerning the issues of the relevant provisions is,in fact,for the uncertain number of representative lawsuit in the judicial practice,a rule out applicable,therefore in the judicial practice,or tend to split into a large group of securities disputes the parties joint action.However,due to the overly abstract provisions in the civil procedure law,the public interest litigation system is obviously lack of operability in the field of securities.It is very likely that it is difficult to file a case in the practice of securities public interest litigation,and the provisions on the subject of public interest litigation are too broad to give full play to the desired effect.To sum up,given the large number of small and medium-sized investors,complex,and professional ability,whether it's representative lawsuit or pil exist practical difficulties,it is easy to fall into the dilemma of collective action,can't really solve the medium and small investors' rights of difficult obstacles,lead to small and medium-sized investors lack of effective way to protect their rights.The lack of effective securities group dispute settlement mechanism of the objective reality,not only led to the rights of small and medium-sized investors cannot get protection,influence the enthusiasm of medium and small investors to participate in the stock market,also makes the securities after the occurrence of tort shall be investigated for insufficient for illegal violations,further reducing the the effect of combat the illegal violations of the securities market,these will become an obstacle to the Chinese securities market healthy and orderly development.Securities support litigation can greatly make up for the absence of the current group dispute resolution mechanism,effectively protect the legitimate rights and interests of a large number of small and medium-sized investors,and form a strong deterrent to the subject of securities infringement,in line with the actual needs of the current development of the capital market.However "support securities litigation" is not a law provisions in legal terminology,the main legal basis from the our country civil procedure law for support prosecution principle specified in article 15,but the securities investment service center support actions is not just limited to the link,to participate in the whole process of the lawsuit,appeared in court to exercise the rights of the litigant,therefore support securities litigation internal framework should be based on litigation take-on system.While investment service center is standing instead of small and medium-sized investors for the position of civil compensation lawsuit,but given the interests of the infringement in securities is beyond the purely private category,therefore,it is also for service center to exercise itself as a "half regulators" responsibilities,to restore damaged the market order of the important measures to support securities litigation both public welfare nature,in essence is out of reality need to protect the weak,is conducive to maintaining procedural justice and substantive justice.Securities support litigation value is mainly manifested in the following several aspects: first,make up the defects of lack of laws and regulations to protect investors,the securities law and other laws and regulations while on investor protection regulations for the purpose of sex,but from the point of view of the current judicial practice,still lack of operable associated with the specific system,and the group lawsuit system of the legal system is an important way to strengthen the lawsuit relief,to promote investor protection legal system continuously improved and development;Second,cracking of medium and small investors rights protection difficult predicament,support actions provide investors with the rights of a new,effective relief channel,to a great extent,reduce the threshold of through litigation to maintain their legal rights and interests of investors,investment service center as a professional investor protection agency,with its authoritative,professional and neutrality,investors can effectively clear the individual lawsuit may face the reality of the obstacles,lighten the burden of lawsuits,medium and small investors;Third,promote the realization of equity and justice in the securities market.Securities support litigation aims to pursue substantial justice,which reflects the important idea of protecting the vulnerable party in society.The implementation of litigation on behalf of investors by the service center can narrow the power gap between the two parties,achieve substantial equality and balance,and make more investors have the opportunity to participate in the process of litigation;Fourth,saving the cost of justice,and promote the applicable law is unified,is one of the important value of securities to support litigation can through a set of litigation process to solve a large number of claims,with a common contention in court trial efficiency,saving judicial resources,unified the referee scale,promote the unification of the law in the securities market for play an irreplaceable role.Since July 2016,the center has filed and won a securities support lawsuit on the case of investors' interests being damaged due to false statements made by the company.By the end of 2018,the center has filed more than 10 securities support lawsuits.Securities investment service center in the selection of support cases require pre-study,select cases demonstrated through research,focus on the consideration of multiple steps in combination with various factors such as finalized,and innovative adopted the form of public solicitation announcement,listed the eligibility conditions of investors,including the scope of the basic conditions for investors through litigation claims,claims,etc.,also told to apply for the investors shall submit the evidence material,greatly lighten the burden of proof for investors.When filing supporting lawsuits,most of the investment and service centers directly take the actual controllers and executives of listed companies as the defendants,which can protect the rights and interests of small and medium-sized investors to the maximum extent compared with previous securities tort compensation litigation cases.In addition,the center has been committed to the study of the logical and convenient calculation method of the amount of damages for false statements,which can fully reflect its professionalism in the field of securities group disputes.Securities support litigation is still in the gradual development in the exploration stage,also exposed some problems in current practice,including securities investment service center to carry out the support litigation legal basis is still not clear,the rights of litigation activities on behalf of the small and medium-sized investors the eligibility of the law status needs to be confirmed,the specific action implementation mode also need to make the provisions of the detailed laws and regulations.Secondly,at present,the number of investors participating in supporting litigation is gradually increasing.The investment center needs to invest a lot of manpower and material resources,and the existing working mode may not be sustainable.In addition,there are inherent defects in civil compensation litigation in the field of securities.Therefore,we should set up the securities support litigation system in line with China's national conditions and the development trend of the securities market on the basis of revising,adding and connecting the relevant departmental laws,administrative rules and regulatory documents of the securities market supervision departments.Firstly,the legal basis and the subject status of the investment center of the securities support litigation system should be clarified through the development of detailed laws and regulations,which is the foundation of the construction of the securities support litigation system.Second,in order to make the securities litigation more operable,we should also establish and perfect the supporting way of action to implement the investment service center practice effect remarkable rules system through the legislation form to acknowledge,such as the premise condition of support securities litigation,cast the identity of the service center to participate in the litigation process qualitative and participate in the litigation rights,investment service center of the burden of funding and other key issues need to be clear;Thirdly,it is also necessary to improve some provisions of the existing litigation system to make it more in line with the needs of securities group litigation,including explicitly canceling the administrative preposition procedure,realizing the professionalization of the litigation court,normalizing the evidence support in case filing and trial stage,and specifying the amount of punitive damages.In addition,we should also attach importance to the development of the ruling mechanism,demonstration on January 16,2019,Shanghai's financial court issued the first demonstration of securities dispute decision mechanism of specific provisions,the provisions of the content covers the demonstration cases selected,demonstration case,demonstration case of professional support,demonstrate the effectiveness of the verdict,demonstration case trial management,etc.,to make detailed provisions shall be applicable to the demonstration of judgment,make its have certain operability in practice.But the rules still need to be refined in some details.The vigorous development of securities support litigation will inevitably lead to the real problem of insufficient energy and resources of the investment center.The demonstration judgment mechanism is the best choice to solve this obstacle,and its combination with securities support litigation is an important measure to promote the continuous improvement of the securities group dispute resolution mechanism.