Study On Tortious Liability Of Actual Controllers For False Statement Of Securities

"Pursuing the chief evildoer" is the realistic demand for the protection of the rights and interests of small and medium investors in the current capital market,to which the Securities Law and its judicial interpretations have fully responded,and the accountability mechanism for the actual controller engaging in securities false statement is becoming stricter.In the context of strong supervision,"irrational discrimination" can also be seen in the judicial practice and thought inertia of civil litigation on false statement.After the cancellation of the pre-procedure for civil litigation,the independence of civil tort litigation of securities has been gradually improved.The tort liability of the international controller for misrepresentation actually involves the judicial authority’s balancing of the interests of various parties,making up for the losses of the investors,making up for the insufficiency of the exercise of public power,and maintaining the healthy development and growth of the securities market.Although the legal status of the actual controller is clearly stipulated by law,the confusion in administrative supervision may affect the fact finding in civil action,thus may affect the order of the actual controller’s liability indirectly.There are theories similar to those of the controlling shareholder with regard to the information disclosure obligation performed by the actual controller,such as fiduciary obligation,good faith obligation,reliance presumption,de facto director’s fiduciary obligation,reference director’s obligation or controlling shareholder’s obligation depending on specific circumstances.Therefore,the issue of the subject of the actual controller and the connotation of its obligation of information disclosure in civil proceedings still need to be clarified.The main idea for determining the individual liability of the actual controller for false statement is to guide the internal division of the liability for false statement with the idea of tort liability,In civil judicial practice,the tort liability of a prime evildoer shall be rationally treated so as to balance the interests of all parties concerned to the maximum extent.Based on the above-mentioned issues,this paper is divided into four aspects.The first part introduces the actual controller system in the Securities Law on the whole,stating the differences and similarities between the actual controller and the controlling shareholder,the requirements for the actual controller from the regulatory level as well as the countermeasures in practice.Meanwhile,it elaborates the jurisprudence basis and connotation of the information disclosure obligation of the actual controller.The second part is based on the background of the establishment of the tort liability of misrepresentation,and makes an empirical study on the tort liability of misrepresentation of the actual controller.The third part takes the elements of tort liability as the analytical framework,mainly develops on such issues as the act of false statement,materiality issue,fault and principle of liability fixation.Since the consequences of damage and the causation thereof are common with those of the liability ascertainment of other entities,no redundant provisions are made herein.The third part takes the elements of tort liability as the analytical framework,mainly develops on such issues as the act of false statement,materiality issue,fault and principle of liability fixation.Since the consequences of damage and the causation thereof are common with those of the liability ascertainment of other entities,no redundant provisions are made herein.Combined with the realistic background of the judicial policy of stressing the personal liability of the actual controller,the author points out the problems that should be paid attention to.In addition,the author introduces the main train of thought on the identification of the misrepresentation liability of the actual controller in comparative law.Finally,this article proposes that we should reduce the path dependence on public law when determining the actual controller’s liability for misrepresentation.The multiple layers of regulation on actual controllers should also transform from an organizational regulatory approach to a transactional one,so as to avoid logical confusion in "determining liability based on identity".