| China's securities market misrepresentation,market manipulation,customer fraud and insider trading,and other large-scale infringement incidents occur frequently,but due to the limitations of administrative supervision and judicial relief,investors who suffer losses often have no way to complain,and it has become a practical problem to obtain effective rights relief.The number of financial and commercial cases accepted by Shanghai courts in 2019 is on the rise,with 3,424 securities and futures cases,up 41.02% year on year,according to the Shanghai High Court's 2019 Notice on Financial and Commercial Judgments.The cases of disputes in China's capital market are increasing obviously,and the types of disputes are diversified.Taking the false statement liability dispute as an example,this kind of dispute involves a large number of investors.In the trial of this kind of dispute,there are great disputes on legal issues such as the determination of tort causality,calculation of investor loss and deduction of risk factors in the securities market system,which puts forward higher standards and requests for the level of financial trial.The method of separate filing and trial of civil cases in China in the past obviously cannot match the judicial practice needs of this type of cases.In order to improve the efficiency of the securities dispute resolution mechanism and the intensification and facilitation of case trial,it is necessary to establish and improve a securities dispute resolution mechanism that is in line with our country's conditions and demands of the capital market.In order to overcome the dilemma of collective action of plaintiff and litigant,and to deter the tortfeasor and give full and effective protection to investors,American securities class action system has creatively cited the "Opt-out" system and the Contingent fee,which is used for reference by many countries.At present,China has already had the environment and the technical condition to establish the "Opt-out" securities class action system.However,due to the difference between the development stage and the actual situation,we should not make rash judgments when drawing lessons from class action in China.We should not blindly follow the pattern of securities class action,nor should we follow all the reforms and trends in the development process of American securities class action.Factors such as American federalism and commercial litigation culture determine the uniqueness of its system,and its securities market also has its own characteristics,for example,the securities market is often free of many potential unknown victims.However,objectively speaking,the main factors causing the problems of securities class action in the United States are not prominent in China,such as the radical lawyer group,the Contingent fee,the confusion of settlement and the insurance mechanism.In the Securities Law of the People's Republic of China(hereinafter referred to as "new" Securities Law)that came into effect in March 2020,the first two paragraphs of Article 95 stipulate the ordinary representative action system,the third paragraph creatively stipulates a special representative action system exclusive to the trial of securities disputes,which is referred to in this paper as the Chinese version of securities class action.This system draws lessons from the "Opt-out" system of class action in the United States,and at the same time retains Chinese characteristics—the Investor Protection Agency is the representative,and has institutional innovations in the starting right of the court,the relaxation of the preliminary procedure and the elective right of the investor protection.From then on,damaged investors in various locations can file securities class actions to defend their legal rights by electing representatives.The compensation effect of "every little makes a mickle " will form a strong deterrent force and high pressure situation to securities illegal and criminal behavior.The Chinese version of securities class action is the symbol of civil litigation from the tradition to the modern,is a powerful legal weapon in the hands of small and medium-sized investors,but also the abyss of the securities issuers and intermediary organizations.According to the "Announcement of the Series of 'Wuyang Debt ' Cases" issued by Hangzhou Intermediate People's Court on March 13,2020,the case will be heard in the form of representative actions of indeterminate number,which opens a new journey of representative actions for securities civil compensation in China and means the first judicial application of ordinary representative actions of indeterminate number in China's securities market since the revision and implementation of the new Securities Law.However,since the Chinese version of the securities class action system has just landed,there is still no sufficient experience to follow in judicial practice in China.The system design is not always perfect,the Chinese version of securities class action still has dilemmas in the system design and the future judicial practice.First of all,as a special institution set up by securities regulatory authorities,the Investment Service Center may violate the principle of fairness by launching the securities class action through the selection of cases.Secondly,the Investor Protection Agency currently lack effective competition mechanism and incentive mechanism,the Investment Service Center is easy to use its unique advantages to influence the litigation process,and due to the lack of sufficient financial resources to deal with the complex litigation process and high litigation costs,the securities class action may be "shelved";Finally,the current system design has laid a hidden danger for the relationship between the ordinary representative action and the special representative action.The special representative action may become an alternative to the ordinary representative action,and may even cause the difficult problem that the special representative action cannot be started.In view of the above difficulties,the author puts forward some suggestions on how to improve the implementation path and safeguard mechanism of the Chinese version of securities class action.Firstly,restructuring the functions of the Investor Protection Agency.Making clear the rationality of the selection of the Investor Protection Agency and exploring their scientific selection standards;By using the practical experience that the Investment Service Center has accumulated in securities support litigation,exploring the possibility of applying the principle of "chasing the first evil" in order to truly combat the masterminds of illegal acts.Secondly,improving the incentive mechanism for competition.While improving the internal incentive mechanism of the Investor Protection Agency,we should try out the limited contingent fee.Establishing an effective competition mechanism and clarifying the competition and elimination rules among Investor Protection Agency.Thirdly,building a diversified securities dispute settlement mechanism.Including clarifying the juxtaposition relationship between the ordinary representative action and the special representative action and proposing the possibility of the Investor Protection Agency directly initiating securities class actions;Exploring the organic combination of the representative action and model judgments,such as clarifying the complementary relationship between the model judgment mechanism and the representative action system,promoting the efficient settlement of disputes through the "connection of litigation and mediation",and establishing the uniform and applicable judgment rules for courts throughout the country.Coordinating the applicable paths between public and private law enforcement to ensure healthy competition among various dispute resolution channels,so that the advantages of each can be fully utilized and investor protection issues can be fully protected. |
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