Violation Of Large-amount Shareholding Disclosure And Slow-moving Rules And Regulations

Since the second half of 2014,there are frequent cases of violation of large shareholding disclosure and slow walking rules in the A share market.These are three typical cases: Shanghai *ST Xin Mei case,Tibet tourism case and Guangdong's "Kang Da Er" case.The judgement of the case and judicial practice is widely concerned by the society and academia.However,it is not clearly stipulated in the present law that whether the violation of the large shareholding disclosure and slow moving is effective,how to deal with the shares,and what kind of civil liability should be taken by the buyer.The increase of irregularities disturbs the order of securities market and damages the legitimate rights and interests of related subjects.The lack of legal provisions also highlights the necessity of judicial practice in the study of related issues.On the basis of case analysis,this paper finds the dispute on the limitation of voting rights,how to make corrections and civil liability,and puts forward the necessary legislative regulation.The first chapter of this article starts from development,result and treatment of the court on *ST Xin Mei case,the Tibet tourism case,and the "Kang Da Er" cases,sums up the focus of the dispute in the practice,finds the different solutions which can cause different results of the cases,carries on the contrast analysis,and provides the overall direction for the paper research.The second chapter begins to solve the legal problems summarized in the case.First of all,to confirm the validity of the premise of violation of disclosure and holding large walking rules.On the basis of distinguishing commercial contract and civil contract,considering the stakeholder,particularity and non cause of securities trading,it is defined as commercial contract and applicable to the special provisions of commercial law.Secondly,on the basis of effective trading behavior,we analyzethe issue of voting rights and eliminate the threat of malicious investors to control rights of listed companies.First,it analyzes the foreign legislative provisions and case views,and then combines domestic legislation and judicial practice to determine the necessity of restricting the voting rights of shareholders and the current practice.Finally,the disputes on the application of the 193,204 and 213 provisions of the securities law are analyzed in detail,and 213 is stipulated as the legal consequences for 86.It defines the real meaning of "ordering correction",determines the scope of administrative responsibility,and points out the necessity of supplementary regulation of civil liability and criminal liability.The third chapter concretely analyzes civil liability and penalty system.The first section,first combining the tort liability law,analyzes whether the act satisfies the constitutive requirements of the tort liability,and emphatically analyzes which rights of the shareholders was violated.Then we analyze the behavior characteristics and compare with insider trading behavior to get the similarity between them.Insider trading can be applied to investigate civil liability and learn from the US's disclosure or abandonment of transaction principles.Finally,combining the tort liability law and the supreme law on the civil compensation provisions of the false statement cases,the concrete forms of civil liability are drawn,including the stop infringement,the design of the right to vote and the concrete system of civil compensation.The second section,based on the analysis of the economic criminal law and the current situation of the market,expounds the necessity of introducing the penalty system,points out the immaturity of the securities market in our country,and the introduction of the penalty is necessary and helps to establish the correct order.Then,by referring to the legislative provisions of Korea and Japan,we discuss the provisions of the crime of insider trading in China's criminal law,and establish the criminal responsibility of free penalty and fine penalty.