| In 2019,the Amendments of the Securities Law of the People’s Republic of China and the Regulations on Optimizing Doing Business Environment improved some policies about the securities market supervision measures,such as deleting Professional Qualification Permission of Directors,Supervisors and Senior Management of Companies.This move aim to reduce some administrative examination and make the securities markets more flexible.Therefore,CSRC issued the Measures for the Implementation of Supervision and Management Measures for the Securities Market(Draft for Comment)in 2020.Article 2 lists 16 commonly used securities regulatory measures and a supplementary provision used for future.This article have sorted out the measures stated by Chinese laws by 2020,and there are more than 80 kinds of securities regulatory measures.There are many types of securities regulatory measures,but their legal attributes are not clear in legislation,and specific regulatory measures are not explained one by one.In practice,what kinds of securities regulatory measures belong to legal transactions and whether they are applied to the corresponding laws have generated some disputes,such as the case of Jiangsu Qiwang Company v.CSRC,Xiaoping Zheng v.CSRC.The CSRC claimed that the securities regulatory measures were not administrative penalties or administrative coercion.They are just administrative managements,and therefore did not apply to the procedural provisions of the Administrative Punishment Law and the Administrative Coercion Law.The CSRC often does not carry out procedures,such as hearing statements.It directly implemented supervision measures that seriously affect the interests of administrative counterparts,which harms the rights of administrative counterparts.According to the characteristics of regulatory measures,there are 38 different securities regulatory measures with similar name or characteristic classified one measure.In order to clarify the attributes and application of these measures,this article compared them with traditional types of legal transaction.They can be divided into three categories.Firstly,some securities regulatory measures should belong to administrative punishment.In the context the 2021 Amendment of Administrative Punishment Law,among the five new types of punishments,Reducing Qualification Levels,Restricting Production and Business Activities,Ordering Closure,and Restricting Employment are all closed to social and economic activities.By analyzing its types and new concept,the nature of administrative punishment should be sanction and finality,and the legislative purpose of administrative punishment should also be taken into consideration.No.1 to No.23 listed in this article should be classified as administrative punishment.Among them,the No.1 to No.3 securities regulatory measures are disciplinary punishment,and the No.4 to No.23 securities regulatory measures are behavioral punishment,and they are corresponding apply to Administrative Punishment Law.Secondly,some securities regulatory measures should belong to administrative coercion.By analyzing the concept and types of administrative coercion and its legislative background,Administrative Coercion Law should expand the scope and concept to include behaviors and rights.The legal attributes that distinguish it from other administrative acts are temporary and mandatory.Therefore,No.24 to No.34 listed in this article should belong to administrative coercion measure.Among them,No.24 to No.29 are restricting behavior measures,and No.30 to No.34 are restricting property measures.In addition,according to the Article 3 of the Administrative Coercion Law,this states the relationship of special law and general law about financial prudential supervision measures,instead of an exclusionary provision.Therefore,No.24 to No.34 securities regulatory measures shall be governed by the Administrative Coercion Law.Lastly,some securities regulatory measures are other administrative transactions.They are No.35 to No.38 measures,which have no restrictions on implementation procedures due to the lack of the Administrative Procedure Code. |
