Research On The Special Representative Action In Securities Disputes

In the general environment of the reform of the registration system,the disputes in the securities market are numerous,and the original multi-securities group dispute settlement system is no longer sufficient to solve the illegal behaviors in the securities field.The Article95 of the newly revised Securities Law Article 95 paragraph 3 of the first special representative action system.The Supreme People’s Court has also issued the judicial interpretation on representative action,the investment service Center has formulated the special representative action rules,Shanghai Financial Court,Nanjing Intermediate People’s Court,Shenzhen Intermediate People’s Court and other courts have also issued the special representative action operation rules,gradually enriching the content of the special representative action system.On November 12,2021,Guangzhou Intermediate People’s Court made a judgment of the first instance on the first case of the special representative lawsuit--the civil compensation case of Kangmei Pharmaceutical for false statements.52,037 investors of the investment service center were awarded a total of 2.459 billion yuan,which provided a valuable case for the judicial practice of the special representative lawsuit system and played an important reference role for the in-depth study of the new system.How to effectively protect the rights and interests of investors,give full play to the system effectiveness of the special representative action system,how to urge the special representative to faithfully perform their duties,and how to balance the system incentive with the system supervision are all problems that need to be further improved in the special representative action system.This paper is divided into four parts.The first chapter systematically expounds the system value of special representative action.In this part,the author introduces the system from the concept and characteristics of special representative action,and further demonstrates the legitimacy of special representative action in three points,thus affirming the system value of special representative action.Firstly,the special representative litigation in our country absorbs the "withdrawal system" of American group litigation,and cracks the "collective action problem" in retail securities tort litigation.At the same time,it replaces America’s "lawyer-led" mode with "NPO led" mode,which can effectively avoid the excessively high litigation problems in America.Secondly,the assumption of litigation theory can provide a legitimate basis for the third party without direct interest to participate in litigation as a special representative,and the insured institution’s participation in litigation as a special representative should belong to any assumption of litigation in the assumption of litigation theory.Finally,the author combined with the successful experience of the first case of Kangmei Pharmaceutical industry,analyzed that the system reform of special representative action has the advantages of value,and conforms to China’s national conditions.The second chapter discusses the selection criteria of the special Representative Service center in the stage of case selection.After analyzing the nature of the main body of the investment service center,it is concluded that it is a public welfare "quasi-national institution" with strong administrative color,which takes into account both private law enforcement and public law enforcement.Furthermore,the functional positioning of the investment service center in the special representative action should be focused on recovering the losses of investors,and on this basis,deterring illegal activities should be taken into account.In this chapter,through the comparison of the American class action,analysis of the existing standards and procedures for case selection,and put forward suggestions for improving the relevant system which is suitable for the function.The third chapter studies the reconstruction of the withdrawal system of special representative action.The biggest characteristic of special representative action is "express withdrawal".The withdrawal right is not only the basis of the system,but also related to the protection of investors’ rights.This chapter firstly demonstrates the legitimacy of the right to opt out,and then proposes to design the system from the notice system and granting investors the second right to opt out,and puts forward that the exercise of the right to opt out is not unlimited,and at the same time the right should be restricted through the intervention of the court to review the reasons for withdrawal.It also distinguishes the factors that the court intervenes in the examination of the first opt-out and the second opt-out.The fourth chapter analyses the system construction of the special representative action court’s examination system.As the safeguard organ of the justice of the litigation procedure of the special representative,the function of the court should not only be reflected in the procedure,but also be used to balance the rights of various subjects in the litigation.As a subordinate institution of China Securities Regulatory Commission,investment and service center has multiple subject identities.When the investment and service center brings a special representative lawsuit as a representative,the court should pay attention to the balance between the two forms of litigation and prevent the administrative property of the investment and service center from interfering in the litigation process.This chapter first analyzes the legitimacy and necessity of the expansion of the court’s review power,and systematically analyzes the problems of the pre-trial review system,the procedure conversion process,the mediation agreement,the change petition and the withdrawal application,and puts forward some suggestions to fill the system.