Research On Compensation For False Statement Of Securities

At present,in China’s securities market,the number of investors involved in securities trading is tens of thousands.In the event of a false statement of securities,the parties involved are not individual.As long as one investor files a lawsuit related to a false statement of securities,it will trigger a large number of cases.In the process of judicial adjudication,if the judge has a slight deviation in the compensation calculation for the investor,either it will damage the legitimate rights of a large number of investors,or it will lead to the decline of a listed company.No matter which result,We both don’t want to see it,and it also will lead to turmoil in the securities market that is not mature enough.It can be seen that the damage compensation for securities false statements requires judicial practitioners to conduct damage measurement objectively,accurately,fairly and justly.However,in China’s legal system,there is no accurate and clear entity treatment for such damages.Because the current securities legislation and judicial interpretation specifically for the civil liability of false statements are still the regulations which formulated by Supreme People’s Court in 2003 named< Provisions on the trial of civil compensation cases arising from false statements in the securities market>(hereinafter referred to as <the Provisions>).In practice,there is always controversy not only about the nature of the misrepresentation of damages,but also the scope and calculation of damages,and the Regulations only have simpleprovisions in Articles 18 and 30.As a result,different courts have different practices,and it can be found from a large number of trials that <the Provisions> have not only been lagging behind,but their provisions are also more principled and abstract.This is also reflected in the scope determination and amount calculation of investor damages.This paper firstly selects three representative cases from the collected cases and summarizes the problems in the cases of false statement of securities in practice.In the second chapter,the main problem is the nature of the liability of civil claims for securities false statements.Firstly,some differences between the current scholars are summarized and analyzed,and then the arguments are analyzed mainly from the aspects of contract and infringement.The sale of securities does not belong to “performance to a third party”,nor does it belong to a contract that does not really benefit,and China does not recognize the altruistic contract.Moreover,there is no securities sales contract relationship between the investor and the securities false statement actor.The investor obtains the shareholder right or the creditor’s right,and therefore cannot seek the liability for breach of contract or the remedy for the fault of contracting the fault.The false statement of securities fully satisfies the requirements for the establishment of tort liability,and although it is a purely economic loss,it is still should compensate in such cases regardless of theory or the practices in various countries.After solving the problem of the nature of the liability for misrepresentation,it is followed by the issue of the scope of compensation.The third chapter starts from the provisions of the existing laws and regulations in China on the scope of compensation,and finds that certain losses within the scope cannot be compensated.This is mainly because the <the Provisions> were formulated with a tempting type of false statement as a model,and no misleading false statement behavior was considered.And it pay too much attention to the status of the false statement implementation day.The author believes that under the current legal system,judges can solve individual special cases through mediation or reconciliation,or seeking approval from the Supreme Court.Ifwe want to solve this loophole fundamentally,we must still improve the current law.We can consider the following methods: the weakening of the status of the implementation day,the improvement of the theory of causality,and the addition of the basic provisions.Even if the scope of damages is clear,China’s calculation of the amount of damages varies from court to court.In the fourth chapter,the author summarizes several kinds of calculation methods applicable to the current court from the retrieved cases,mainly including the actual cost method,the first-in first-out + weighted average method,the direct weighted average method and the moving weighted average method.Then from the perspectives of rationality,legitimacy and simplicity,it is concluded that the moving weighted average method is the optimal solution.