China: Exploring The Frontier In Securities Litigation In China (Chinese)

Last Updated: 2 October 2017
Article by Victor Yang

Key factors in ascertaining mis-representation in the Chinese security market 探索中国证券诉讼的新领域 - 认定中国证券市场中虚假陈述的关键因素

简介

近年来,随着沪深股市的迅速发展,以及创业板等新兴市场的出现,证券市场在多元化发展的同时,证券虚假陈述(欺诈上市、虚构利润等)也愈发常见。自2003年最高人民法院《关于审理证券市场因虚假陈述引发的民事赔偿案件的若干规定》(以下简称" 《虚假陈述规定》")的生效之后,证券虚假陈述纠纷的数量更是呈现逐年上升的趋势。从2003年起至2016年,以最高院公报案例大庆联谊案为首,已有超过110起虚假陈述民事纠纷案件,其中超过40起案件形成了最终判决。此外,2017年欣泰电器欺诈上市一案也开启了创业板证券虚假陈述民事赔偿的先河。有鉴于此,本文将简要归纳证券虚假陈述民事赔偿纠纷中的关键问题。

从上述《虚假陈述规定》的内容来看,证券虚假陈述纠纷主要存在下列三大关键问题:

  1. 涉案虚假陈述符合重大性标准( "重大性");
  2. 涉案虚假陈述与投资人索赔损失之间是否成立因果关系( "因果关系");
  3. 虚假陈述行为人(被告)可主张免责事由的认定( "免责事由")。

重大性

由于《虚假陈述规定》第6条明确指出,投资人提起证券虚假陈述民事赔偿诉讼原则上应当以相关行政机关的行政处罚决定或者人民法院的刑事裁判文书为前提,在司法实践中,人民法院不仅将证监会对虚假陈述行为人的处罚决定书作为立案依据 1,往往还将证监会处罚决定书中对虚假陈述事实的认定作为涉案虚假陈述是否对投资人产生重大影响的依据。易言之,一旦证监会对虚假陈述行为人作出行政处罚,原则上法院将为认定涉案虚假陈述符合重大性标准。

因果关系

虚假陈述与投资人索赔损失之间的因果关系问题,相关研究成果较为丰富。学理和司法实践中都广泛认同——证券虚假陈述的认定,应当同时考虑交易因果关系和损失因果关系两个层面。即证券虚假陈述应当同时构成投资人的作出相应交易和受有的相应损失的原因。对于交易因果关系,立法者在《虚假陈述规定》中采纳了欺诈市场理论,原则上原告(投资人)即便非因知悉案涉虚假陈述而作出投资决策,也可以主张其投资应当被推定为受被告虚假陈述之影响。对此,《虚假陈述规定》第18条对认定交易因果关系的具体标准作出了详细规定。然而,认定损失因果关系的具体标准仍有待相关法律法规和司法解释进行进一步阐释。

免责事由 – 系统风险

虽然虚假陈述民事诉讼中的被告在应讼时,往往会援引《虚假陈述规定》第19条第4款"证券市场系统风险"以减轻或免除自身责任,但是中国法下并无相应的法定定性分析方法。因此,对于如何认定证券市场的系统风险,以及如何进一步确定虚假陈述行为人可藉此减免或减少赔偿的具体数额,在法律适用层面尚存较大争议,各地法院所采纳的分析方法和标准也莫衷一是。在审判实践中,证券市场系统风险的具体事由(如全球或地区性金融危机,行业内部市场走势的根本性变动、国家对具体产业政策的重大变更等),以及行业指数(若该事由主要影响行为人所在行业板块)及/或大盘指数(若该事由影响了整个大盘)的系统性涨跌,往往成为认定证券市场系统性风险这一免责事由的主要依据。

结论

尽管近年来证券虚假陈述民事诉讼的数量逐年上升,更有不少上市公司和金融机构因此被处罚,需要注意的是,相较于部分发达国家的证券市场,中国证券市场整体尚不够成熟,向证券虚假陈述行为人索赔损失是否成功很大程度上仍取决于个案事实以及有管辖权的人民法院的自由裁量。

注释:

1 尽管2015年12月24日,最高人民法院在《关于当前商事审判工作中的若干具体问题》中指出,"根据立案登记司法解释规定,因虚假陈述、内幕交易和市场操纵行为引发的民事赔偿案件,立案受理时不再以监管部门的行政处罚和生效的刑事判决认定为前置条件"。但文件并非司法解释,并不具有当然法律效力。就目前而言,证监会处罚决定在司法实践中仍然被广泛认为是提起证券虚假陈述民事诉讼的前置条件。

2017年9月《中国法律快讯》的完整链接和其他文章的链接如下:

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