The Application Of Proportional Joint And Several Liability In Securities Misrepresentation Cases

In recent years,the people’s court no longer rigidly applies full joint and several liability to the securities intermediary agency with only general negligence in the case of disputes over securities false statements,but decides that the securities intermediary agency and the issuer bear joint and several liability within a certain percentage.This adjudication method implements the principle of “equal fault and responsibility”,protects the interests of intermediary institutions and promotes the healthy development of the securities market.This paper sorts out typical cases of securities false statements,analyzes the judgment documents that judge securities intermediary institutions to bear civil liability in the dispute cases of securities false statements in judicial practice,and sums up the thoughts and views of people’s courts at all levels on the form of civil liability of securities intermediary institutions.Through the case study,it can be seen that when courts at all levels apply the judgment method of “proportional joint liability”,there are still some cases such as “different reasoning,unclear application conditions,and no standard proportion size”.In the final analysis,the method of applying proportional joint liability remains problematic.In this paper,we focus on the application of proportional joint and multivariate liability as the central issue,from the following four aspects.First,it demonstrates the legitimacy of applying proportional joint liability from the perspective of legality and rationality,and emphasizes on demonstrating that the “semi-superimposed theory of separate torts” can be the legal basis of applying proportional joint liability.The second is to clarify the premises for applying proportional joint and multiple liability.The conditions for imposing proportional joint and multiple liability should be derived from the positive and negative conditions.Positive conditions include joint infringement by securities intermediaries and issuers,the existence of general negligence and a causal relationship between tort and fault.Negative conditions include subjective malignancy and exceeding the limits of the scope of duty.Third,it discusses the criterion for determining the proportion of joint and several liability of securities intermediary institutions,that is,it takes into account the causal force of the contribution of securities intermediary institutions to the loss,the fault of securities intermediary institutions,and the reasons for liability reduction and exemption.Fourth,it analyzes the difference between the proportion of external joint and several liabilities and the proportion of internal liabilities,and proposes a solution to the internal liability problem in two dimensions: the limitation of the scope of recoverable liabilities and the method of calculating the amount of recoverable liabilities.In this paper,we have clarified the application of the proportional joint liability method in the case of securities misrepresentation disputes.In the case of disputes over misrepresentation of securities,the proportion of joint liability applied to securities intermediary agencies that are generally negligent can be carried out according to the three steps of “examining whether they meet the applicable conditions,determining the proportion of external joint and several liability,and determining the amount of internal recovery”.This approach helps make the application of proportionate joint and several liability in such cases more systematic and persuasive,and provides guidance for the adjudication of cases of tortious misrepresentation under the general negligence of securities intermediaries.