China: 律师证券业务中函证方法的使用覧基于近年行政处罚案例的实证研究

Last Updated: 11 April 2019
Article by DeHeng Law Offices
Most Read Contributor in China, April 2019

一、近年律所被行政处罚的有关函证情况

经笔者统计,2013年至今,在中国证券监督管理委员会(以下简称"中国证监会")对证券业务律师事务所(以下简称"律所")的9例行政处罚决定中,有4例明确指出律所存在未适当履行函证程序的问题。主要为如下几个方面:(1)函证措施的缺失:如北京A律所未向开户银行函证定期存款质押;(2)未独立函证:北京B律所直接取自券商的函证底稿,亦未对券商的函证底稿进行核实和验证;(3)函证内容的不充分:如广东C律所的函证内容中缺失三包索赔事项;(4)未独立寄送函证:未由律所独立寄送,而是交由客户送达或邮寄;(5)函证回收后的核查缺失:未对回函记载内容进行核查,如未对客户用印错误、回函内容所述的异常情况进行验证。

根据公开资料,律师事务所未适当履行函证程序的主要案例如下:

二、律师进行函证核查方法的规范性文件及主要条款

三、律师证券业务函证方法

(一)函证的范围

根据《律师事务所证券法律业务执业规则(试行)》等有关规定,可函证的主要范围如下:

笔者认为,除上述事项外,对于律师无法取得充分材料/证据支持的其他事项,律所亦可通过向掌握相关信息的第三方发送函证的方式进行核查验证。

(二)回函的时限与比例

根据《律师事务所证券法律业务执业规则(试行)》等相关规定,函证中需注明要求对方回函的时限。可敦促客户与被函证方进行良性地沟通,以免回函比例过低影响核查结果的准确性。

(三)函证的收发程序控制

1.函证发出之前

为有效地实施函证程序,律师在询证函发出前需要合理地设计询证函的格式,包括索引表,注明索引号、函证对象、联系方式、快递单号等,并保留快递存根。需要注意的是:(1)询证函中应载明回函的地址,建议为律所办公地址;(2)提前核对询证函中的名称、地址等内容的准确性,避免发生快递被退回的情形;(3)询证函中应载明回函时间,可以根据项目情况、时间进度进行合理设置;(4)律所独立寄送函证,而不得交由客户送达或邮寄。

2.函证发出之后

在函证发出之后、回函截止时间之前,律师应督促客户配合做好回函工作。对于收到或者是未收到的函证,律师应在索引表中一一注明情况,并及时归档,保存回函信封及回函。同时,律师应当对回函进行实质性核查,如发现与函证内容不符的需要进一步核查并作出解决方案及安排。

(四)回函总结及替代程序

对于回函情况,律师应当在法律意见出具之前进行总结,包括回函比例、未回函情况、函证事项是否与核查结果一致、如不一致而采取了何种核查措施以确定最终结果等。对于时限内无法取得回函的,律师应当进行替代性核查手段,例如董监高简历询证函未回复,可以通过以下方式补充核查:(1)查询被函证公司联系方式进行询证;(2)如在被函证公司担任董监高的,通过网上查询工商信息/调档等方式核查;(3)取得当事人任职相关劳动合同、离职证明等。

四、证券律师函证工作建议

(一)函证的范围

对于函证的范围,证券律师应特别注意是否属于《律师事务所证券法律业务执业规则(试行)》规定中应当函证的事项,对于明确规定应当函证的内容,不得采取其他核查方式替代函证程序。此外,律师在函证中应保证问题的开放性,避免事先限制函证对象的回复内容,导致函证结果不充分。

(二)函证过程的控制

对于函证过程的控制,在实务中,在一个项目上律所可能涉及几十封,甚至上百封函证,律师面对如此繁复的工作可能疏忽与被函证对象核对寄送地址,或者不会关注到不同回函的快递单是否连号、回函地址和公司地址是否一致、回函对象盖章名称和工商名称是否一致等细节。但在中国证监会的处罚决定中,强调各证券服务机构的独立核查义务,要求证券服务机构从不同的角度关注发行人是否存在异常情况,因此各证券服务机构应独立核查,在函证控制的各个环节要做到"事必躬亲",并从细节入手核查回函的真实性、可靠性,避免因函证程序不充分导致函证丧失独立性。

(三)借鉴会计师事务所函证经验

如"四大"会计师事务所基本都设立了专门部门负责函证控制,即所有项目组的函证不是由项目组直接发送及回收,而是由专门负责函证控制的部门按照设定的标准流程,复核地址、发送、跟踪、催促、回收。整个函证实施同时有发达的计算机系统对相关信息进行跟踪和记录,确保回函的真实性、可靠性。因此,"四大"会计师事务所对函证程序的规范设置和细节处理共同保证了函证程序的独立性和可靠性,也对其他证券服务机构函证程序的实施提供了借鉴。

五、结语

在注册制试点、监管趋于严格的政策背景下,中国证监会对证券业务律师的执业要求进一步严格,我们认为,证券业务律师执业过程中的标准化、规范化是今后的提升执业质量的必然要求。函证作为律师证券业务重要核查方式之一,规范函证的操作流程具有重大意义。律师在证券业务中运用函证方法时,应当明确函证的范围,把握好函证的控制程序,审慎关注函证过程的进展,在无法取得函证时按照规定寻找合理的替代方式,尽可能保证函证程序的独立性,以及回函的可靠性,并最终提高律师执业质量,提升证券法律业务服务水平。

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