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Research On The Identification Of Civil Liability For Securities Misrepresentation

Posted on:2021-07-13Degree:MasterType:Thesis
Country:ChinaCandidate:B Y MaFull Text:PDF
GTID:2506306290472584Subject:Economic Law
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Although many laws and regulations have been formulated to regulate the behavior of misrepresentation,the investor’s claim for loss is based on the path of civil action,civil liability for misrepresentation is of great significance to investor protection.The obligation of information disclosure is based on the obligation established by law.The breach of this obligation is the tort liability,so the civil liability of false statement is a tort liability.Following the four components of tort liability,through the method of empirical analysis,on the basis of sorting out and analyzing the civil cases of misrepresentation in judicial practice in 2019,there are still some disputes about the way to determine the responsibility in the practice of finding the focus of the dispute.The constitutive elements of conduct are difficult to determine the significance of misrepresentation in different ways,and the constitutive elements of fault have not found the focus of dispute in relevant cases,the key elements of causality are: First,there are different ways to identify the day;Second,there are different rules to identify the causality of induced false statement,the elements of damage are divided into two parts: one is the different path of disclosure date,the other is the different rules of systematic risk deduction.The different ways of determining the importance of misrepresentation are rooted in the dual split of "price sensitivity standard" and "investor decision-making standard".It is found that the "investor’s decision-making standard" is more extensive than the "price sensitivity standard",more suitable for the value pursuit of "buyer’s self-caution" and "investor’s protection" in securities law,and more convenient for the judge to make discretion with rational investors,and to some extent,it reduces the burden of proof for investors.A relatively single standard would allow the judge to avoid confusion in its application and would help balance the interests of disclosure obligations and investors,so it should unify the criterion of materiality and adopt the "investor decision-making standard" as the criterion.The cause and effect path of induced false statement is different because of the absence of the rules of determining the cause and effect.Article 18 of certain provisions does not clearly distinguish between inducing multiple types of false statements and inducing empty types of false statements,but it excludes the cases of inducing empty types of false statements resulting in loss,therefore,it can not be used to determine the causal relationship of null and void false statements.However,the inapplicability of Article 18 of certain provisions does not mean that the legislation implicitly excludes the regulation of induced null misrepresentation,article 69 of the Securities Law,Article 17 of certain provisions and the relevant laws of Tort Law constitute the basis of civil liability for damages;Secondly,the loss of available benefits caused by the false statement and the actual loss of benefits caused by the false statement belong to the loss of benefits in tort law,it is the consistent principle of investor protection to compensate the loss of gain caused by induced false statement.The civil liability of induced false statement belongs to tort liability,so it should follow the rules of tort causation.The traditional "theory of inevitable causality" and "theory of equivalent causality" adopt the all-or-nothing one-point method to determine causality,requiring the investor to prove that there is a necessary or equivalent probability between the misrepresentation and the result of the damage,thus overburdening the investor,the dichotomy of transaction causality and loss causality uses the principle of trust presumption to balance the burden of proof between the actor and the investor,so it is appropriate to apply the dichotomy.The Provisions on causation in several regulations are based on the principle of presumption of trust.The practice since its implementation can prove the applicability of the principle of presumption of trust in China.Taking the trading time as the cut-in point,this paper determines the situation that the investors suffer losses under the false statement of the inductive type,and builds up the causal relationship identification rules of the inductive type on this basis,its basic content is that the investor should buy before the implementation date or between the implementation date and the disclosure date,and sell the securities directly related to the conduct before the implementation date and the disclosure date,if the disclosure information concealed by the actor or the misrepresentation information publicly disclosed is of great importance,the causality can be presumed,and the actor has corresponding defense reasons.The different paths of the false statement disclosure date are due to the fact that Article 20 of the regulations only defines the disclosure date and defines the quantitative factors of the disclosure date,but not the reference factors of the disclosure date.Disclosure Day must make "the market can and actually know the relevant truth",so the qualitative elements of disclosure day can be determined as the relevance of the content,the authoritativeness of the subject and the intensity of the market reaction.Because the securities market can not distinguish the specific impact of certain information on the market,and the factors of market reaction may exist in many ways at the same time,therefore,the primary reference factor is to reveal the relevance of the content and the authority of the subject,the severity of the market reaction serves as an auxiliary reference factor.In practice,the common disclosure day includes Filing Investigation Day,Administrative Penalty Notice Day,administrative penalty day and Media Report Day.The administrative penalty notice is more specific than the filing notice and earlier than the administrative penalty time,which can be regarded as the first reference object of the disclosure day.The different identification paths of the system risk of misrepresentation are rooted in the unclear reference factors stipulated in some regulations,so it can be made clear that the reference factors of the system risk are mainly the plate index,and are identified by combining with other indexes,the method of deduction is relative proportion.
Keywords/Search Tags:false statement, significance, causal relationship, systemic risk
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