| The securities market is an important part of China’s socialist market economy system,providing a large amount of financing for the real economy and playing a positive role in regulating the imbalance between the supply and demand of monetary funds,and is known as the barometer of the national economy.Although China’s securities market has made long-term progress compared with the early stage of its establishment,and the supporting laws and regulations as well as various systems have become more and more perfect,the overall operation has greater instability,and has been "short bull and long bear".The fundamental reason is that China’s securities market misrepresentation,market manipulation,insider trading,the rights and interests of investors have not been effectively protected,still in the "heavy administrative and criminal penalties,light civil compensation" situation,a serious blow to investor confidence.28 December 2019 the 13 th National People’s Congress The adoption of the new Securities Law,with a special chapter on "investor protection",highlights the importance attached to the protection of investors’ rights and interests.Although the new law specifies the early payment system and forms a diversified dispute resolution system for investor protection together with the Securities Investor Protection Fund and civil litigation,the existing dispute resolution mechanism still has various problems such as limited protection scope and insufficient protection.In this regard,this paper hopes to build a securities investor compensation fund system by taking the U.S.Fair Fund as a reference and combining it with the actual situation in China to make up for the defects in the process of civil claims by securities investors,enhance investors’ confidence and promote the healthy development of the securities market.The whole paper is divided into four parts as follows.The first part generally introduces the current situation of civil tort disputes in China’s securities market,and introduces the formation and practice of the securities investors’ compensation fund system.First,a big data analysis of civil litigation cases of misrepresentation,insider trading and market manipulation in the securities market this year and a comparison of the SEC’s supervision and enforcement of such cases with the situation in the United States reveal the frequent occurrence of tort cases in China’s securities market.Secondly,it is difficult for investors to file cases through traditional remedies,high cost of defending rights,lack of professionalism,and difficulties in claiming compensation.Finally,by introducing the formation and practice cases of the U.S.Fair Fund,the characteristics of the securities investor compensation fund system are shown,and it is hoped that they can be introduced into China.The second part justifies the establishment of the securities investors’ compensation fund system in China.Firstly,through analyzing the theoretical challenges to the securities investor compensation fund system,it is found that the so-called "circular liability dilemma" and "low rate of compensation" do not exist in the compensation fund system or are not major problems.Second,we propose the necessity of establishing an investor compensation fund in China.The establishment of compensation fund can make up for the shortage of traditional remedies,enhance investors’ confidence,and is a supporting measure of the registration system reform.Finally,it provides the theoretical basis for the establishment of the securities investor compensation fund system from four aspects.First,it is in line with the theory of "financial safety net" in finance;second,it is a necessary requirement of investor protection theory;third,it is in line with the principle of priority of civil liability;fourth,China already has the core institution of the compensation fund system,the Securities Regulatory Commission,which can play a leading role.The third part compares the securities investor compensation fund system with the existing securities investor protection fund system and the early compensation fund system in China,which have obvious differences in the design of the system,value purpose,funding source,compensation object,compensation scope and compensation effect,and the compensation fund system is not a duplicate construction of the existing system,but has its space to play.In the fourth part,we propose a construction concept for China’s securities investor compensation fund,and design rules for the compensation fund system from four aspects: establishment model,funding source,compensation target,scope,procedure,and fund operation and supervision.First,through the analysis of the establishment model,the establishment model combining permanent type and case-specific exclusive account is suggested.Second,fines and confiscated illegal proceeds will be used as the source of funds,and listed companies and their controlling shareholders,actual controllers,senior managers,as well as relevant securities managers and accountants will be encouraged to pay a certain percentage of dues and protection money.Third,professional investors should be excluded and ordinary investors should be the target of compensation;the losses to be compensated should be the direct losses of investors,excluding the losses of normal market fluctuations,and also bonds should be included in the categories of products involved in compensation;and administrative hearing procedures should be introduced in the compensation procedures to guarantee investors’ participation in the formulation of compensation plans and enhance the fairness of compensation procedures.Fourth,the Securities Investor Protection Fund Co.,Ltd.should be responsible for the operation of the compensation fund,the people’s courts should supervise the compensation of the fund afterwards,and the Securities Investment Fund Industry Association should be given the authority to supervise the investment and daily expenditure of the compensation fund. |
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