| Since the reform and opening up,China’s securities market has flourished and achieved remarkable achievements.However,in the fierce market competition,violations of laws and regulations in the securities market are also becoming increasingly fierce,with market fraud,misrepresentation,audit negligence,and other phenomena emerging one after another.Various types of securities intermediaries have been repeatedly punished for not being diligent and responsible.In this context,the Securities Law requires intermediary agencies to bear joint and several liabilities in misrepresentation.However,in practice,some cases do not distinguish between the subjective degree of fault and the magnitude of the causal force of the intermediary agencies,and directly order them to bear joint and several liabilities for all losses of investors.This "overcorrection" regulatory approach has led to intermediary agencies with a lesser degree of fault being required to bear compensation liabilities that are significantly different from their degree of fault,Failure to comply with the principle of fairness in which fault and liability are compatible has also caused concern among securities intermediaries.The investors involved in false statement cases usually have a large base,and the amount involved is often hundreds of millions of yuan.In the face of huge economic benefits,regardless of the tilt of the judicial balance towards either party,it will lead to significant damage to the rights and interests of other parties,causing immeasurable damage to the ecosystem of the securities market.In this context,it is even more necessary to clarify the responsibility and scope of misrepresentation from the legal level,in order to protect the "gatekeepers" of the securities market from the dilemma of mechanism failure.Through sorting out classic cases of misrepresentation in the securities market in the past five years and the legal risks of intermediary agencies’ performance of duties,this article fully combs the gaps in the joint and several liability assumption of securities intermediary agencies,actively studies the professional functions of intermediary agencies,and explores their liability division mechanism and compensation scope.In order to further clarify the liability patterns and judicial boundaries of intermediary agencies in securities misrepresentation,and effectively curb the "joint fraud" of intermediary agencies,the author combed domestic and foreign laws and regulations on misrepresentation,and drew on the "fraud market theory" of the United States to analyze specific identification rules such as the accountability mechanism,causal relationship,and defense grounds for the fault liability of intermediary agencies in China,Based on the "dichotomy" theory,this paper attempts to frame the scope of responsibilities and due diligence requirements of various intermediary institutions from the perspective of experts and non experts,with a view to identifying the reasons for the changes in the role of "gatekeepers" of securities intermediary institutions,and providing reasonable suggestions for consolidating intermediary responsibilities and promoting the development of China’s securities market.In addition,based on the fact that intermediaries cannot perform their duties in judicial practice and cause significant harm to investors,the article attempts to explore ways to achieve intermediary liability through the introduction and improvement of the special fund system,the establishment of a new model of joint and several liability for first compensation and "chasing the worst",and the expansion of diverse securities dispute resolution mechanisms. |
