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The Improvement Of Securities Intermediaries' Civil Liabilities On Account Of False Registration Statement

Posted on:2022-04-04Degree:MasterType:Thesis
Country:ChinaCandidate:P Y WuFull Text:PDF
GTID:2506306725461734Subject:Economic Law
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The implementation of the new “Securities Law” in 2020 marks the full implementation of the issuance registration system in securities market.As a result,the authenticity,accuracy and completeness of information are placed at a high level,and the function of the“gatekeeper” in the market of securities intermediaries has become a consensus,and the aggravation of civil liability is one of the most important ways which is constantly mentioned by the scholars and judges.However,the disputes caused by judicial judgments have aroused deeper thinking among scholars—legal liability has both the functions of prevention and punishment and the key to this function lies in rationally determining the responsibility of the wrongdoer.If blindly emphasize compensation for investors' losses,equate “protection”with “remedy”,allowing securities intermediaries to unreasonably cover the issuer's faults,which is not only detrimental to the overall development of securities intermediaries,but also not beneficial to the long-term health of capital market.Therefore,this article takes the securities intermediaries as the starting point to discuss the current rules and defects of the civil liability under the background of the false registration statement,in order to explore an appropriate and feasible path for the civil liability of securities intermediaries.The first chapter mainly elaborates on the determination that should be followed in civil liability for false statements issued by securities intermediaries and the defects of the current norms.The logic of Tort Liability Law guarantees to the greatest extent the realization of the principle of equal liability and penalty.However,current practices have the shortcomings in determining causation,fault,and joint and several liability uniformly applicable is excessively stringent.In judicial practice,the responsibilities for securities intermediaries are strict but out of balance.In tort law,the causation limits the scope of loss and the fault only plays a threshold role in determining civil liability.Although the traditional tort law follows the chain from the objective to subjective,this article judges the civil liability of securities intermediaries based on the logical chain of whether the security intermediaries have the duty of care,whether it violates the duty of care,whether the violation has caused investors' losses and the extent of the losses.Two of former are included in the fault,others are included in causation.Therefore,Chapter 2 addresses the “fuzziness of fault” in the civil liability of security intermediaries in the false registration statement,and emphasizes the relevance to fault and false statement.It needs to be determined on the premise that the securities intermediaries bear the responsibility for the process rather than the result.The scope and standard of the duty of care is based on professional characteristics and skills,and the objective profession standards for a specific situation are used to define the special duty of care.In the scope and degree of the general duty of care,we need to make a distinction between “opinion” and “facts”,so securities intermediaries shall take the general duty of care for the professional opinions and the materials of the fact related to the professional opinions.Chapter 3 proposes refined goals and methods in causation,and advocates the use of transaction causality and loss causality in order to address the “ambiguity of causation”.Securities intermediaries can argue against transaction causation by existence of actual trust,no materiality,use of “fraud market theory” to prove that investors are not affected by false information or overturn the presumption of“effective market.At the level of loss causation,systemic and unsystematic risk defenses can be claimed to limit the scope of compensation.The fourth chapter consider the “strictness of joint and several liability” and believes that the scope of joint and several liability on the current securities law should be limited.Securities intermediaries' liabilities shall be distinguished from deliberate and negligence.If securities intermediaries deliberately make false statements,they should be punished by bear joint and several liability;if they make misrepresentation caused by negligence,they only need to bear the corresponding supplementary liability.
Keywords/Search Tags:False Registration Statement, Securities Intermediaries, Causation, Duty of Care, Supplementary Liability
PDF Full Text Request
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