证券监管的目标和路径

Purpose and Route of Security Regulation

对证券监管目标的认识应该回到证券市场,只有对证券市场的功能清楚明了,才能客观地把握证券监管的目标。按照经济分析的思路,证券监管的法律架构应该服务于减少交易成本,提高市场效率。但是将提高市场效率作为唯一的监管目标有失偏颇。自然法学并不排除财富最大化和效率,而自然法学中的正义、理性、道德等丰富的思维切入点给证券监管的目标带来了更开阔的视野。证券监管的目标应该包括公平价值引导下的投资者保护和理性限度内的效率。基于不同的分析范式,监管制度的具体设计也表现出不同的选择取向。

The fundamental purpose of security regulation should find its answers in security market. While the functions of security market are known as direct financing and pricing, the legal framework of security regulation should be submitted to decrease transaction costs and improve market efficiency according to economic analysis of law. However, making ＂to improve market efficiency＂ the only purpose couldn＇t be considered as a comprehensive thinking. Firstly, it still doesn＇t reach the level of effective market even in the developed countries＇ markets. The fact of irrational investment is very widespread among the world＇s markets, so effective pricing to improve market＇s efficiency through considering information may not be available. Moreover, the key point of economic analysis is pricing, but there do exist other important functions in the security market, such as the distribution of shares and system risk. These issues couldn＇t be resolved simply by the means of pricing. Secondly, whether the purpose of security regulation should only be efficiency, or should include other lists like fairness and justice？ In fact, security market is a confidence market where investors＇ confidence comes from the operation system of the market. The requirements on fairness and justice are what make investors have confidence. If investors lost their confidence, they will choose to leave the market and make the pricing procedure nonsense. Thirdly, the contents of security law are in accordance with the rationales of natural law. While forbidding insider transaction and requirement on information disclosure are able to interpret what are fairness and justice, the rule of anti-fraud means a good way to reach ＂common good＂. And from the point of view of natural law, there isn＇t fundament contradiction between efficiency and good. The purposes of security regulation should include the protection of investors and improving efficiency within limited ration. Finally, the insights and solutions offered by natural law reasoning may provide a different regulatory regime. As to the benefit conflict of security analysts, while the economic analysis＇ resolving plan considers the necessity of relative regulation regime, listing other alternative regulative methods and evaluating the cost and benefit of all methods, the natural law puts emphasis on the mixture of mandatory and non-mandatory methods to improve the social good.