Research On The Recourse Rights Of Advance Payers In The Securities Market

Article 93 of the Securities Law of the People's Republic of China in 2019 initially stipulates the securities advance compensation system.As a new measure,in the event of fraudulent issuance,false statement or other illegal acts,investors should be compensated in advance by the possible responsible person,which not only meets the requirements of convenient and efficient relief for investors' rights and interests,but also avoids the vibration of the whole market and ensures the normal and rapid operation of the capital market.However,the system of securities compensation in advance inevitably has some shortcomings,such as how to ensure that the payer of compensation in advance can recover from the ultimate liable subject after the payment of compensation in advance.In the process of recovery,the advance payer not only faces the difficulty of responsibility identification and division,but also other difficulties.For example,the issuer and other liable person refuse to repay the advance indemnity paid by the advance payer on the ground that the mediation agreement is invalid or the compensation is overpaid.In addition,if other liable person face bankruptcy in the process of recovery,can the advance payer achieve recovery at this time?Based on some forward-looking considerations and combining with the current judicial practice,the author takes how to ensure the realization of the recourse right of the advance payer in practice as the research goal.First of all,the author focuses on the root of the right of recovery of the advance payer,discusses the relationship between the advance payer and other related legal subjects,and discusses the legal basis of the right of recovery of the advance payer from three perspectives: the legal logic of the realization of the right of recovery,the legal responsibility of the advance payer and the principle of self-liability.Then,the focus is the practice of the advance payer' s right of recourse and the author summarizes three typical cases and the current practice situation.And then,the author pays attention to the problem of the realization of the right of recourse,which mainly shows that the existing "protection mechanism of the right of recourse" is not complete and cannot be fully implemented.Finally,the author puts forward several aspects on the improvement of the "protection mechanism of the right of recourse".The author puts forward measures from various angles such as setting up the "securities public fund" according to the funding source of the "fair fund" in the United States,broaden the use of the "investor protection fund" appropriately and guaranteeing advance payers with the legal force to realize the right of recovery.Besides,the author also analyzes the "protection mechanism of the right of recourse" from the perspective of articulation with other systems.