Research On Director’s Civil Liability In Securities Misrepresentation

As one of the subjects of civil liability for securities misrepresentation,directors are liable for tort compensation to investors.The civil liability system of directors for securities misrepresentation in China is based on the theory of tort,and the boundary of liability of directors should be clear in order to achieve a balance between the protection of investors’ rights and interests and directors’ enthusiasm in performing their duties.Under the Securities Law and the newly amended Judicial Interpretation on Misrepresentation,the civil liability of directors for misrepresentation has formed a legislative status quo with the presumption of fault as the principle of imputation,fault as the main element of liability,"diligence" as the main cause of exclusion and joint and several liability as the form of liability.Through the analysis of the current situation of legislation and judicial practice,we found that there are problems.One of the problems is that,at the level of the elements of directors’ civil liability,the elements of fault are vague,the types of directors’ negligence are unclear,and the impact of individual directors’ differences on the standard of fault is not fully taken into account.Secondly,in respect of the exclusion of directors’ civil liability,the scope of diligence is unreasonably limited and it is difficult for directors to be exempted from liability.Thirdly,at the level of directors’ civil liability,there is a single form of joint and several liability,and there is no correspondence between directors’ faults and liability forms,which lacks theoretical support.In view of the above problems,through examining the relevant legislation in overseas countries and studying the relevant views of Chinese academics,we put forward relevant suggestions for improvement.On the fault level of directors’ civil liability,the criteria for determining their fault need to be improved.To clarify that the types of directors’ negligence do not include minor negligence.Define the meaning of "duty of care" in the determination of directors’ negligence,take into account the commonality and individuality of directors,and establish a system of fault criteria that combines objective and subjective criteria.The criteria for fault determination should be differentiated according to the type of director,and the professional competence of directors should be included in the scope of fault criteria.Strengthen the judicial independence of the court in reviewing and determining the fault of directors,and clarify the auxiliary role of administrative penalties in regulating the fault determination of the court.At the level of exemptions from directors’ civil liability,the scope of exemptions from directors’ civil liability should be broadened to include reasonable reliance on professional advice and directors’ daily diligence in the scope of exemptions from directors’ liability.At the level of directors’ civil liability,the legislation should be harmonised with judicial practice,and the scope of application of various forms of liability should be clarified in accordance with the principle that the form of liability is appropriate to the fault.