Original title: Lower the threshold for investors to sue!
The securities market misrepresented judicial interpretations, canceled the pre-procedures, clarified the responsibility of independent directors, and punished the "first evil"... Let's take a look at the top ten highlights
On January 21, the Supreme People's Court issued the "Several Provisions of the Supreme People's Court on Trial of Civil Compensation Cases for Misrepresentation Infringement in the Securities Market in the New Era" (referred to as "Several Provisions").
On the basis of integrating the relevant contents of the original judicial interpretation, 15 new important contents have been added, focusing on the application of law by the people's court after the cancellation of the pre-procedure procedure, and refining the constituent elements of civil compensation liability for securities misrepresentation, including subjective fault, false Issues such as statement behavior, materiality, transaction causality, loss causation, loss calculation, and statute of limitations.
The Supreme People's Court and the China Securities Regulatory Commission also jointly issued the relevant "Notice" to link the implementation of relevant rules after the cancellation of the pre-procedures.
A relevant person from the China Securities Regulatory Commission said that the China Securities Regulatory Commission will actively cooperate with the Supreme People's Court, steadily and orderly implement the "Several Regulations" and the "Notice", and take the reform of the whole market registration system as the lead to promote the overall improvement of the quality of listed companies. Responsibilities of intermediaries, and continuously improve the quality and efficiency of investor protection work.
At the same time, the CSRC will continue to implement the "zero tolerance" work requirements, optimize the law enforcement and judicial cooperation mechanism in the capital market, strengthen the crackdown on violations of laws and regulations in the capital market, and promote the high-quality development of the capital market.
Aspect 1: Clearly cancel the pre-procedures, timely and comprehensively protect the right to appeal of damaged investors
Securities market infringement civil compensation cases are characterized by a large number of parties, difficulty in obtaining evidence, and complex professional knowledge. Article 6 stipulates the pre-procedure, that is, the people's court accepts a false statement dispute case on the premise that the false statement has been recognized by an administrative penalty or a criminal judgment document.
From the perspective of practical effect, the pre-procedure has played an important role in reducing the plaintiff's burden of proof, preventing indiscriminate litigation, and unifying administrative penalties and judicial judgment standards.
However, at the same time, the pre-procedure also has problems such as insufficient protection of investors' rights to appeal, and a long period of rights realization, which needs to be improved at the institutional level.
With the increasing development and maturity of my country's securities market, the continuous accumulation of securities trial experience in the courts, the continuous improvement of the judicial system and the capital market system, the conditions for abolishing the pre-procedure are gradually fulfilled.
On the basis of fully studying the opinions of all parties, the "Several Provisions" clearly cancel the arrangement of the pre-procedure procedure, which effectively lowers the threshold for investors to sue, and fully protects the right to appeal of damaged investors in a timely manner.
First, if the plaintiff files a civil compensation lawsuit for securities misrepresentation infringement, as long as it complies with Article 122 of the Civil Procedure Law and submits corresponding evidence, the people's court shall accept it; secondly, after the case is accepted, the people's court shall not The statement is ruled not to be accepted on the grounds that the statement has not been subject to administrative punishment by the regulatory authority or the people's court has determined that the criminal judgment has taken effect.
Aspect 2: Clarify the fault identification standards of directors, supervisors and senior executives, especially independent directors, and the reasons for disclaimer defense
Article 14 of the "Several Provisions" further clarifies that whether directors, supervisors, senior managers and other directly responsible personnel are at fault shall be determined on the basis of examining factors such as the status, role, and degree of diligence and due diligence; at the same time, Article 15 The article also makes special arrangements for the circumstances in which directors, supervisors and senior executives may abuse the "objection provision" of Article 82(4) of the Securities Law to avoid liability.
For independent directors, they should take advantage of their professionalism and independence to give full play to their supervisory role, check and balance the dominance of one share and insider control, safeguard the interests of small and medium shareholders, and improve corporate governance.
Judging from the financial fraud cases that broke out in recent years, some independent directors have not played the role of supervision and restriction preset by the system.
Therefore, according to the purpose of the independent director system and the status quo of market practice, the "Several Provisions" consolidate the civil liability of independent directors in catering to fraud and serious breach of duty of care and other major non-performance behaviors.
At the same time, the "Several Regulations" also fully responded to the market's concerns, specifically listing and stipulating the excuses for defense of independent directors. Independent directors can be exempted from liability as long as they can prove that they have taken corresponding measures in accordance with the regulations, so as to relieve the worries of diligent and conscientious people. Avoid the "chilling effect".
Aspect 3: Increase the "Predictive Information Safe Harbor" system
The "safe harbor system" means that the forecaster makes the forecast in good faith and based on the principle of good faith, and the basic assumptions on which it is based are reasonable, even if there is a difference between the statement made and the actual situation in the future. If there is a discrepancy, the predictive information disclosing party does not have to bear the responsibility for securities fraud.
The principle of advance warning requires that forecasts should be prudently explained and warned. Even if it is difficult to achieve after the fact, it is not a false statement.
"Obligation to update forecast information in a timely manner" means that if the facts on which the forecast is based have changed, as long as the relevant content is updated or supplemented, it will not constitute a false statement.
为避免个别不诚信公司利用自愿披露前瞻性信息进行虚假陈述，厘清自愿的预测性信息披露与虚假陈述的界限，《若干规定》结合证券法第84条规定以及境外制度经验，建立了“预测性信息安全港”制度，以进一步督促上市公司提高信息披露质量。
看点四：优化“三日一价”认定标准
对于实施日，《若干规定》区分了积极的虚假陈述和消极的虚假陈述。
前者是指信息披露义务人主动披露的信息中存在虚假记载、误导性陈述，披露日即为虚假陈述实施日；
后者是因未及时披露相关更正、确认信息构成误导性陈述，或者未及时披露重大事件或者重要事项等构成重大遗漏，如隐瞒重大关联交易、重大违法事项等以应当披露相关信息期限届满后的第一个交易日为实施日。
对于揭露日，《若干规定》重点明确以市场知悉作为判断基准，人民法院应当根据公开交易市场对相关信息的反应等证据，判断投资者是否知悉了虚假陈述，同时，为了便于操作，还列举了监管部门及自律管理组织对相关主体立案调查或采取自律管理措施等信息公开之日作为揭露日，当事人有相反证据足以反驳的除外。
对于基准日和基准价，《若干规定》对相关认定标准进行了优化，充分考虑了不同个股的流动性因素，区分不同情形列举了确定基准日和基准价的具体方法，还规定了专家认定、参考行业通常估值方法等措施。
看点五：实施精准“追首恶”，明确“帮凶”的赔偿责任
实践中，不少影响恶劣的上市公司财务造假案件，是由控股股东、实际控制人组织、指使上市公司所为，这些控股股东、实际控制人是财务造假违法活动中的“首恶”。只有上市公司背后的实质违法者得到惩罚，才能真正打击财务造假，净化市场环境，实现零容忍的政策目标。
《若干规定》专门规定了“追首恶”的相关安排，明确原告可以直接诉请判令在虚假陈述中发挥组织、指使作用的控股股东、实际控制人赔偿损失，发行人也有权向负有责任的控股股东、实际控制人追偿，以进一步压实组织、指使造假的控股股东和实际控制人责任，使“首恶”能够得到应有的惩罚，实现精准打击。
In addition, in practice, some financial institutions collude with listed companies to issue false bank confirmation letters, false bank receipts, false bank statements, and deceive certified public accountants; some listed companies’ suppliers and sales customers are listed companies. Financial fraud provides false transaction contracts, goods circulation and accounts receivable and payable vouchers, and becomes a helper for financial fraud.
Therefore, the "Several Provisions" further clarifies the liability of "accomplices" in order to curb the peripheral assisting force of false statements.
As a result, Articles 20 and 22 of the "Several Provisions" echo each other, and jointly weave a net of legal responsibility for the "first evil" and "accomplices" to effectively deter financial fraud activities.
Aspect 6: Regulate "flickering" reorganization and hold the counterparty accountable for false statements
With the increasingly active mergers and acquisitions transactions of listed companies in recent years, the counterparties of mergers and acquisitions have used financial fraud to whitewash the operating performance of the target companies, and cases of selling to listed companies at high prices have also occurred from time to time.
Since the information disclosure in the major asset restructuring is the responsibility of the listed company, the counterparty is not the "information disclosure obligor" stipulated by the Securities Law. Consistent with common perceptions of fairness.
The counterparty, as a participant in the major asset restructuring activities of the listed company, has real information about the target company. If the information provided does not meet the requirements of authenticity, accuracy and completeness, resulting in false statements in the information disclosure documents related to the major asset restructuring of the listed company, it shall be Pursuing its liability is in line with the principles of tort law.
In this regard, Article 21 of the "Several Provisions" stipulates that the information provided by the counterparty of the company's major asset restructuring does not meet the requirements of authenticity, accuracy and completeness, resulting in false statements in the relevant information disclosed by the company. The people's court shall uphold the compensation with the issuer and other responsible parties for the resulting losses.
Aspect 7: Clarify the rules of prudential verification and reasonable trust for intermediaries and other agencies
The "Several Provisions" emphasize that sponsors and underwriters have the obligation to prudently verify and verify information disclosure documents. For professional opinions issued by securities service institutions, on the basis of prudent verification and necessary investigation and review, if there are reasonable reasons to exclude professional doubts, "reasonable reliance" can be claimed.
At the same time, for securities service institutions, the "Several Provisions" also clarify that if they have ruled out professional doubts on the basis of prudent verification and necessary investigation and review, they may claim reasonable trust in other intermediary institutions.
In the context of comprehensively promoting the reform of the registration system, the Ruoqian Regulations further clarify the responsibility boundaries of all intermediaries, which will help urge all intermediaries to fulfill their responsibilities, give full play to the role of "gatekeepers" in the capital market, and create a good ecosystem for the capital market.
Aspect 8: Add content related to false statements that lure empty space
The original judicial interpretation mainly stipulated the relevant content of the misleading false statement.
Short-baiting misrepresentation mainly refers to the fact that the misrepresenter releases false negative bad news, or conceals substantial good news and does not announce it or does not announce it in a timely manner, so that investors sell stocks when the stock price is running down or relatively low. After the false statement is revealed or corrected, the stock price rises and the investor suffers losses, such as when the listed company understates the amount of profit by a large margin, the original holder may be affected and "vote with their feet" to be lower than Sell shares at fair market value.
In judicial practice in recent years, there have been some civil cases of decoy false statements. Combined with trial practice, Article 11 of the "Several Provisions" specifies the determination of the causality of transactions related to decoy false statements. It also replaces "buy" in the original judicial interpretation with "transaction", which is intended to cover short-term misrepresentation; Article 28 specifically adds the provisions on the calculation of losses for multi-type misrepresentation.
The relevant regulations conform to the needs of market development, fill in the gaps in the system, and help improve investor protection.
Point 9: Optimize the materiality determination criteria and clarify the causal relationship of transactions
The "Several Provisions" further optimizes the materiality determination criteria. In addition to listing clearly based on the relevant provisions of the Securities Law and the regulations and normative documents of the regulatory authorities, it also clarifies that the obvious changes in the trading volume and trading price of securities can be regarded as the content of false statements. Significant criteria.
In addition, combined with domestic judicial practice and overseas experience, the causal relationship of transaction is clearly stipulated in the constituent elements of civil liability for misrepresentation.
Point 10: Strengthen the coordination between judicial authorities and regulatory authorities to reduce the difficulty for investors to provide evidence
After the abolition of the pre-procedures, in order to effectively reduce the difficulty for investors to provide evidence and smooth the way for investors to litigate, during the formulation of the "Several Provisions", the Supreme People's Court and the China Securities Regulatory Commission conducted a work mechanism for the trial of cases in the people's court and the professional support mechanism of the China Securities Regulatory Commission. For the purpose of careful study, the "Notice" will be issued simultaneously with the "Several Provisions", and a case notification mechanism will be established. Institutions provide assistance and cooperation in accordance with laws and regulations.
During the trial of a case, the people's court may seek the opinions of the China Securities Regulatory Commission, its relevant dispatched offices, and relevant management units on relevant professional issues.
At the same time, in order to better improve the professional level of the trial of cases, and encourage local courts to actively carry out expert consultation and exploration of professionals serving as people's assessors, the CSRC dispatched offices and relevant departments will make relevant experts and professionals serve as people's assessors. The recommendation and so on cooperate with the work.
Through the above-mentioned cohesive arrangements, the securities case trial system and mechanism will be continuously improved, and under the joint efforts of judicial trials and administrative supervision, the level of investor protection in my country will continue and steadily improve.