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Analysis of perfecting the legal system of predictive information disclosure of listed companies in China thinking

Author: LiYuPing¡¡RenYing¡¡XueZuoZuo From: www.yourpaper.net Posted: 2009-09-15 08:01:22 Read:
Paper Keywords predictive information; legal system; civil liability; Disclaimer system

[Abstract] predictive of greater uncertainty and risk characteristics more predictive information disclosure of listed companies need the protection of the legal system. Therefore, China should gradually by judicial practice established for civil liability system to predict the characteristics of information disclosure, and effectively protect the legitimate rights and interests of investors. The same time, learn the theory and practice of the U.S. Safe Harbor experience, combined with China's national conditions, to develop a forecast for China's securities market information disclosure exemption system, the legitimate interests of the protection of the main body of information disclosure to encourage and correctly guide public companies to disclose the forecast information.

Listed companies to disclose forecasts merely reflect the company's past results of operations and financial position of the defects can make up for the traditional financial reporting, help to reduce the information asymmetry between investors and company management authorities, and enhance the openness and fairness of the securities market, promote the development of the capital market. But its produce is mainly based on subjective estimates and evaluation, and therefore has greater uncertainty and risk. The characteristics of the predictive information the predictive information disclosure of listed companies need the protection of the legal system. On the one hand, to prevent the fraud of listed companies, to improve the predictive quality of the information, to protect the interests of information users; On the other hand, to prevent unreasonable actions of the users of information on listed companies, in order to protect the legitimate interests of the listed company, actively encourage and correct guidance listed companies to disclose the forecast information.

A listed company forecast information disclosure system Analysis

The solution to our current illegal behavior predictive information disclosed general administrative penalties, the China Securities Regulatory Commission both a warning and a fine of punishment listed companies in breach of disclosure regulations. Shanghai and Shenzhen Stock Exchange listed company information disclosure violation penalties, mainly public reprimand, internal criticism and ordered to correct three. Although the relevant provisions of the Securities Law of the People's Republic of China ": the issuer, securities underwriting companies publish a prospectus for company bonds offer financial accounting reports, listed reports, annual reports, interim reports, interim reports, false record misleading statements or material omissions, causing investors to suffer loss in securities trading, the issuer, underwriting securities company should be liable for damages, the issuer, underwriting securities company responsible for directors, supervisors and managers should bear the joint and several liability. However, the losses caused by the listed companies misleading statements to investors have not been included in a civil action.
January 15, 2002, the Supreme People's Court issued a notice on admissibility of the securities markets caused by misrepresentation tort disputes, January 9, 2003, the Supreme People's Court issued a "on the trial of the securities market because of certain provisions of the civil compensation cases triggered by false statements, two file initially opens the door to civil compensation system in China's securities market. However, it is only in respect of false statements civil compensation made procedural requirements, and set the expedient of pre-conditions. Therefore, in practice operability is not strong, did not play a good punishment and deterrence offenders.
This paper argues that the use of administrative measures punishing illegal company not play a very good deterrent to offenders, not fundamentally curb the occurrence of false disclosure, only held the main body of the civil liability of information fraud, to give false information to victims fully compensation, given effective legal deterrent of information fraud. In our in punishing forecast violations rarely involved in civil liability, an important reason for our current laws, a lack of investors on the management of listed companies and financial analysts proceedings. According to the provisions of the "Company Law" and "General Principles of the Civil Law" agency relationship exists between the company and the directors and senior management, so when the company directors and senior management violated the interests of the company when the company suffered losses, the company can be directly investigated their legal obligations. However, does not have such a direct agency relationship between the shareholders and the directors and senior management. Thus the shareholders can not directly sue the offending directors and senior management. Therefore, on the one hand, China should be established by the judicial practice to fit the characteristics of forecast information disclosed Rules of Civil Procedure, and effectively protect the legitimate rights and interests of investors. On the other hand, you can learn the theory and practice of the "safe harbor rules" experience, combined with China's national conditions, development of the disclaimer system suited to China's securities market forecast information disclosure, protection of the legitimate interests of the information disclosed in the main, actively encourage and correct guidance listed The company disclosed the forecast information.

Second, the establishment of the civil liability system

Build predictive information disclosure system of civil liability should clear the following legal requirements:

(A) forecast information civil liability of the parties
Determine predictive information civil liability of parties necessary to define the subject of rights and obligations of the main body of the legal relationship. The identity of the subject of rights must be a determined group, suffered damage to property investors (including organizations and individuals trading in securities based on false financial forecast information, where the organization generally refers to groups with legal person status, including securities companies, securities investment consulting companies, securities investment funds, suppliers, creditors, etc.).
The main obligations of the disclosure of false information liable for. According to the different types of information disclosed and the specific circumstances, the following categories of staff should bear civil liability for disclosure of information: (1) or listed companies issued, although the company itself does not exist the capacity of consciousness, its behavior is done by their staff, but as a civil the affordability of the legal entity, the company should be responsible for their disclosure behavior. ¢Ú issue of the company's directors, supervisors, managers and other senior management, these individuals should be responsible for their actions as the company's decision-makers and executors. However, in practice, to be treated differently according to the specific circumstances. The prospectus is approved by all Directors review, so if a problem occurs, all members of the Board shall be accountable to the misrepresentation. (3) professionals, including company lawyers, CPAs, auditors, securities underwriters, listed recommended, as well as other technical professionals. These professional advisers before predictive information to be disclosed have about the company forecasts and issue expert opinions. Legal opinions provided by the company lawyers, certified public accountants forecast audit report constitutes part of the content of the information disclosed, responsible for statements they will issue a written document and bear the responsibility.

(B) of the Principles of Responsibility
Responsibility principle, identify and pursue the civil liability of the tortfeasor basis. The modern Civil Liability Principle mainly in three ways: First, the principle of no-fault. Predict the quality of the information defective and cause damage to the information users, regardless of the producers of information in the process of production or report whether the fault should be liable for damages of information users. The second is the principle of fault liability (Law on the "fault", refers to dominate the behavior of people engaged in legal and ethical behavior should be subject to censure the intentional and negligent state that acts contrary to the legal and ethical behavior manifested a subjective state). Forecast information production and reporting the only bear corresponding civil liability for damage caused due to no fault of their own, and victim at the same time respond to infringe the burden of proof of fault. Third, the principle of presumption of fault. Refers to the information users can prove that the damage inflicted upon it by the information provider behavior, information providers can not prove that he is not at fault, it can be presumed fault information providers, and should bear corresponding civil liability. Relationship of the parties for information disclosure, respectively, should be applicable imputation principles to specific analysis:
1, the issuer, the listed companies. Issuer as of the most important responsibilities of people assume the obligation of information disclosure, usually applies most demanding a principle. National laws generally require the issuer or a promoter assume liability without fault, as long as the information public documents false or conceal matters, in addition to the issuer or a promoter is able to prove that the plaintiff in the acquisition of securities have been aware of the outside, the strict liability of the contents of the entire file.
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