Research On The Duty Of Diligence And Assumption Of Liability For Securities Lawyers

Under the background of the comprehensive trial implementation of the registration system,the duty of due diligence of securities lawyers is particularly important,and the continuous improvement of information technology has also broadened the verification means of securities lawyers.As legal professionals,to what extent securities lawyers should exercise due diligence in the securities market so as to avoid liability has always been a problem among securities lawyers on one hand and regulatory and judicial authorities on the other,while the defect and loophole of the existing laws and regulations have hindered the effective resolution of this problem.Therefore,in order to protect the legitimate rights and interests of investors and maintain the fair,just and effective market order of the securities market,it is necessary to improve the relevant laws and regulations of the securities market so as to ensure the balance between the practice of securities lawyers and the administrative supervision and civil adjudication.To effectively maintain the stable operation of China’s capital market,it is necessary for the CSRC to play a better role in ex ante and interim market supervision,and for the courts to play a better role in ex post adjudication.This article discusses the duty of due diligence and assumption of liabilities by securities lawyers in four chapters,which are briefly summarized as follows:The first chapter analyzes the actuality and deficiency of the duty of diligence of securities lawyers.By sorting out the existing cases of administrative penalties and regulatory measures by the CSRC as well as civil litigation cases concerning securities,we summarize the main behaviors of securities lawyers’ associations in violation of due diligence,which can be subdivided into two types: defective procedural details and defective legal opinions.Based on cases,this paper analyzes the inadequacies of the current provisions of laws and regulations on the duty of due diligence of securities lawyers and the thoughts on identifying whether securities lawyers have violated the duty of due diligence.There are mainly problems such as the vague scope of obligations,the unclear concept of "professional duty of care" and "substance over form".The second chapter of this article elaborates on the basic theory of the duty of diligence and the corresponding assumption of liability of securities lawyers.Firstly,the paper traces the theory of due diligence,and analyzes that the due diligence of securities lawyers mainly comes from three aspects: requirements for the role of "gatekeeper" in the securities market,requirements for the principal-agent relationship with issuers,and requirements for strengthening information disclosure under the reform of the registration system.Secondly,discuss the content and scope of the duty of diligence of securities lawyers.This article points out that securities lawyers shall only fulfill their professional obligations in respect of professional legal matters,perform necessary procedures in accordance with relevant rules,and pay attention to the scope of due diligence obligations between securities lawyers and other intermediaries in order not to be held to an excessively high standard of due diligence obligations.The third chapter of this article elaborates the securities lawyer’s liability when he/she violates the duty of diligence from the perspective of civil liability.Based on the general theory of determining the liability as tort liability in the academic circle,the author analyzes the liability subject,causation and liability attribution principle.The fourth chapter is the suggestion to the rule construction and the consummation.Through to the obligation fulfillment present situation and the insufficiency carding summary,proposes the consummation suggestion regarding the extant insufficiency separately.With respect to the ambiguity of the scope of obligations,the boundaries between the obligations of lawyers and those of other intermediaries shall be clarified to avoid the situation that lawyers are excessively penalized due to flaws in the scope of obligations of other intermediaries;With respect to the degree of duty of care,reasonable standards for professionals’ duty of care shall be formulated;objective standards shall be established according to the identification thought that "substance is more important than form" to avoid "inferring cause from effect".