资本市场民事赔偿金、行政罚款与刑法罚金制度研究 (Research on Civil Compensation, Administrative Fine and Criminal Fine in the Chinese Capital Markets)
中证中小投资者服务中心课题研究报告(Research Project Report for Investor Services Centre, China Securities Regulatory Commission) May/2018
91 Pages Posted: 11 May 2020
Date Written: May 18, 2018
Chinese Abstract: 本文对于我国资本市场民事赔偿金、行政罚款与刑法罚金制度的关系进行了全面和深入的研究，指出了民事赔偿责任优先原则的现实困境，在此背景下探讨了民事赔偿责任优先原则的法理基础，然后分别讨论了如何实现民事赔偿责任优先原则的几个路径，包括国库管理制度上证券罚没款的暂缓入库和申请退库机制、让保荐机构等责任主体先期赔付的机制和将证券罚没款用于赔偿投资者损失的公平基金机制等，考量其各自的优缺点，进行可行性分析，并对于相关程序的协调和衔接进行顶层设计，在借鉴境外相关经验和考虑我国本土条件的基础上提出完善建议，以提升我国资本市场投资者保护水平。
English Abstract: This research paper undertakes a comprehensive and in-depth study of the relationship between civil compensation, administrative fine and criminal fine used in China’s capital market regulation. It points out the plight of the principle of securities civil liability priority, and discusses the jurisprudential basis for that principle. It then examines three main ways to improve the enforcement of the principle in turn, including postponement of sending fines to the state treasury and application for returning funds, compensation payment in advance by parities such as the sponsors, and the fair fund regime where the regulator can use the fines to compensate aggrieved investors. This is followed by a discussion of the procedural design with respect to the relevant mechanisms. Drawing upon relevant overseas experiences and taking into account China’s local conditions, the paper makes proposals for reform, with a view to improving investor protection in China’s securities markets.
Although the principle of securities civil liability priority is well enshrined in relevant laws in China, notably the securities law, it often fails to materialize in practice. The main reason behind it is the procedural precondition for brining securities civil litigation, under which a prior administrative penalty or criminal judgment is required in order to bring a civil litigation for compensation. As the administrative or criminal proceedings precede civil proceedings and the perpetrator has limited funds, it is not uncommon that little is left to compensate aggrieved investors after the perpetrator has paid administrative fines or criminal fines.
The jurisprudential basis for the principle of securities civil liability priority manifests itself well in the following ways. It illustrates the core value of investor protection under the securities law, embodies the people-oriented thought in the new era of China’s socialism, highlights the important role civil compensation plays in protecting investors and offering psychological comfort, confirms to the theoretical logic and empirical findings of law and finance, stands in line with international trends and suits the special local conditions in China. It is thus important to strengthen the enforcement of the principle of securities civil liability priority.
An analysis is conducted of the main ways to realize the principle of securities civil liability priority, making the following points. First, due to institutional obstacles, it is practically difficult to apply postponement of sending fines to the state treasury and application for returning funds, and thus they cannot be used as immediate solutions and can only be solutions in the long term. Second, China has had successful cases with respect to compensation payment in advance by parities such as the sponsors, and the proposed revision to the securities law has provided for it. Hence, it holds promise to be used as immediate solutions. It however has limitations in its scope of application. Third, the fair fund regime essentially uses fines to compensate aggrieved investors rather than send them to the state treasury. Despite some institutional difficulties, it is worth trying to introduce it to China, as it has important functions to complement other existing regimes.
Finally, the paper proposes a procedural innovation to better coordinate administrative, criminal and civil proceedings against the same securities misconduct. For instance, it is submitted that civil proceedings can be brought after the regulator makes a preliminary administrative penalty announcement rather than the final penalty is made. This allows investors to obtain compensation from the perpetrator before the final administrative penalty, and when finalizing the administrative penalty, the regulator can take into account the performance of the perpetrator in compensating investors.
Note: Downloadable document is in Chinese.
Keywords: 证券民事责任优先原则；民事赔偿金；行政罚款；刑法罚金；罚没款暂缓入库和申请退库；中国资本市场；civil compensation; administrative fine; criminal fine; Chinese capital markets
JEL Classification: G18; K22; K42
Suggested Citation: Suggested Citation