| Article 95,paragraph 3 of the new Securities Law creates a system of special representatives for securities disputes,which gives the investor protection agency the legal status,adopting the rules of “implicit entry,express exit” to include investors.The first practice of this system is the Kangmei Pharmaceutical Misrepresentation Case,which has aroused heated discussion,demonstrating China’s determination to correct the chaos of securities,embodying the purpose of protecting the interests of small and medium-sized investors,and is conducive to forcing the securities market to operate in a standardized manner.There are inconsistencies between the special representative’s litigation and the representative’s litigation established in China’s civil procedure law,and the positioning of the special representative’s litigation should be clear.This paper aims to start from the analysis of the litigation positioning of the special representative,draw the conclusion that it is a special form of representative litigation,and then analyze it under the framework of the representative litigation system.This article first uses the theory of arbitrary litigation to answer the basis of investor protection agencies as non-substantivelegal relations that why become special representatives in litigation.Secondly,in view of the issue that the special representative is designated by substantive law rather than the consensual selection of the representative,it will be explained from the method of selecting the special representative,and it is proposed to establish and improve the "secondary selection" mechanism.Finally,as for the issue of the performance and supervision of the special representative,it is proposed that the special representative should independently exercise its functions to avoid multiple role conflicts.And at the same time,in order to effectively protect the legitimate rights and interests of the represented investor,it should be clear at the normative level that the representative may withdraw the right to implement the lawsuit at any time.In addition,there will be other Special Representative that is able to participate in litigation based on the entrustment of investors. |
