Research On Civil Liability Of Manipulation In Securities Market

Since China's accession to the WTO,China's securities market has been continuously open to the outside world,giving full play to its role in optimizing resource allocation,accelerating economic development and promoting capital flow.However,with the rapid development of China's securities market,many problems are exposed.China's securities law and criminal law have made prohibitive provisions on the manipulation of the securities market and stipulated corresponding legal liabilities,but there are still many loopholes.Since the promulgation and implementation of China's current securities law more than 20 years ago,it has undergone four amendments,three amendments in 2004,2013 and 2014 respectively,and one amendment in 2005.Although it has been revised and improved many times,the current legal framework of the securities law is still the version under the market pattern in the late 1990 s.With the continuous development of the socialist market economy and the deepening reform of the economic system since China's accession to the WTO,the relevant contents of the securities law have been unable to adapt to the current changeable and emerging new difficult problems in the securities market.At present,the means of manipulating the securities market are more covert and diversified,which makes it more difficult to identify the behavior of manipulating the securities market.Although the securities law curbs the proliferation of manipulation to some extent,the provisions of civil liability for manipulation are still inadequate,which leads to the lack of full protection for the interests of small and medium-sized investors,especially for the civil liability,undermines the fairness of the securities market,and is not conducive to the stable development of the securities market.Therefore,how to establish and improve the manipulation of the securities market The civil liability of behavior is particularly important.In the process of our country's legal regulation of the securities market,the mode that has been adopted is to pay more attention to public law punishment than to private law relief,that is to say,administrative punishment and criminal punishment are often imposed on the person who manipulates the securities market.Although the punishment in public law can often play a great deterrent role,it ignores the protection of investors' right to civil compensation,which is the biggest subject of the securities market.Because of the defects of securities law and relevant laws and regulations,many investors can not get reasonable compensation for the losses caused by manipulation,and it is impossible to protect the legitimate rights and interests of investors,which is the missing civil liability system in the judicial practice of our country.Based on the protection of the legitimate rights and interests of investors,this paper aims to explore the civil liability system of securities market manipulation.In addition to the introduction and conclusion,this paper is divided into five chapters:The first chapter is an overview of the manipulation of the securities market.The first section reviews the current situation of the legislation of the manipulation of the securities market in China,and finds that,like most of the securities legislation in the world,there is no clear concept of the manipulation in China.The author analyzes the differences of the legislative thinking and the environment of the securities market,and points out that the manipulation of the securities legislation in China It is necessary for the concept of behavior to be clear,and through the comparison of representative views of different countries and scholars,a clear definition of the behavior of manipulating the securities market is given.The second section classifies the manipulation into traditional manipulation and new manipulation in recent years,and analyzes the concept and elements of various manipulation through typical cases.This paper mainly discusses the different theories of the nature of civil liability for manipulating the securities market,and the representative viewpoints are: breach of contract,tort and independent liability.Three different theories have their own advantages,and the author supports the theory of tort.Because of the trading characteristics of the securities market,the victim of breach of contract theory is not specific,while the relativity of contract can only adopt a separate litigation mode,which increases the litigation cost in judicial practice,and has no practical operation possibility.The theory of independent responsibility holds that the theory of breach of contract has a contractual relationship between the manipulator and the investor,and that it is subject to the principle of contract relativity and lacks the possibility of practical operation,while the weak investor in the theory of tort has the difficulty of proof,so the theorysets up a separate law to regulate the responsibility independent of the two previous theories.Its essence is the product of compromise,but in the trial,the relevant provisions of contract and tort will still be applied by analogy.This paper mainly aims at the problems in the judicial practice of the civil liability system of manipulating the securities market in China,including the imbalance of the rules and principles of manipulating the securities market,the difficulty in identifying the manipulation behavior,the insufficiency of the litigation efficiency of the representative and the non establishment of the compensation standard of the civil litigation,as well as the harm brought by these problems,so as to clearly improve the civil liability system of manipulating the securities market in China The necessity of.The fourth chapter is to improve the civil liability system of securities manipulation in China.It introduces the burden of proof,the determination of manipulation behavior,the way of litigation,the standard of compensation in the civil compensation litigation of securities manipulation in the United States and Japan respectively,and then compares with the relevant provisions and practices in China,and summarizes the experience that can be used for reference and reference in China.The fifth chapter is to improve the suggestions,from the problems existing in the practice of civil compensation litigation in China's manipulation of the securities market,combined with the implementation of the new securities law,based on the experience of the advanced systems in the United States,Japan and Taiwan,to introduce the group litigation mode,improve the rules and principles,clear compensation standards and calculation methods,etc.