The Practice Of American Securities Administrative Settlement And Its Enlightenment To China

Article 171 of China’s new Securities Law stipulates the administrative settlement system of securities and futures.The Securities Administrative Settlement System,which was originally established by China Securities Regulatory Commission in the form of the Measures for the Pilot Implementation of Administrative settlement(hereinafter referred to as the Implementation Measures)and the Interim Measures for the Management of Administrative settlement Fund(hereinafter referred to as the Management Measures).However,since the implementation of the "Implementation Measures" and the "Management measures" in 2015,only two cases of securities violations are applicable to settlement,and the pilot effect is far from expectation.In sharp contrast to the difficult situation in the promotion of the domestic securities administrative settlement system,settlement is widely used in the practice of law enforcement in the United States.In the decades of regulatory enforcement by the Securities and Exchange Commission(hereinafter referred to as SEC),settlement is the main enforcement method adopted by SEC when dealing with securities violations.This paper mainly uses the method of comparative study to discuss the reasons why the securities administrative settlement system,which is widely applied in the United States,is difficult to be implemented in China,and puts forward some suggestions to improve it.This paper is divided into four parts.The first part of this paper introduces the theories related to the securities administrative settlement system,demonstrates the legitimacy of solving cases by means of settlement in the field of securities law enforcement,and draws the conclusion that the discretion of securities law enforcement agencies is the theoretical support of the settlement with the counterpart.Settlement is not an administrative agency’s abandonment of its duties,but a manifestation of the administrative agency’s exercise of discretion.The second part of this paper points out that there are some outstanding problems in the promotion of the current Securities Administrative Settlement System in China,such as the poor implementation of settlement,few applicable cases,insufficient disclosure of settlement information,low efficiency of settlement fund management and so on.The reasons for these problems can be summarized into three categories:direct reason,institutional reason and fundamental reason.The direct reason is that the conditions for the application of settlement are too strict.The institutional reason is that the settlement fund management and distribution system,as a supporting system for the implementation of settlement,is invalid.The fundamental reason is that the long-standing government led mode of administrative law enforcement in China makes the settlement system,which takes equal consultation as the premise to achieve good results,face natural obstacles when it is introduced into the field of securities law enforcement.The negotiation status of administrative counterpart in the process of reconciliation is lack of guarantee,which leads to the low enthusiasm of settlement.The third part of this paper introduces the practice of American securities administrative settlement system in detail from three aspects of system design,supporting system operation and application of settlement,and concludes that the important reason why settlement is widely used in the United States is that it focuses on providing substantive and procedural guarantee for the implementation of settlement,which paves the way for the fourth part to analyze and summarize the enlightenment of American securities administrative settlement system to China.The fourth part of this paper,based on the experience of the United States,combined with the three kinds of reasons summarized in the second part,puts forward three kinds of suggestions for improvement,which include: relaxing the applicable conditions of settlement,changing the concept of supervision;learning from the FAIR Fund,refining the management of settlement fund;introducing external supervision,strengthening the in-process supervision and post-process supervision.At the same time,under the three kinds of suggestions,this paper puts forward a number of specific suggestions from both the substantive and procedural aspects,so as to improve the Securities Administrative Settlement System in China.