证券监管视野下的《证券法》完善之反思

Reflection of Improving the Securities Law under the Regulatory Perspective

一个强大的证券市场取决于一个复杂的法律和制度网络,市场机制、中介组织、市场自律监管机构、法庭执法、监管者执法是保障证券市场高效运行的五条防线,市场机制、中介组织、市场自律监管机构是证券监管的微观基础,而作为私人执法机构的法庭与作为公共执法机构的监管者,对证券市场的发展起着极为重要的作用,而监管的最终目的是促进私人缔约。我国证券监管体制基本建立,但是存在监管执法力度不足,证券市场微观基础薄弱,《证券法》无法适应高速发展的市场需要等问题。《证券法》应该关注证券市场基础制度问题,而把具体操作性问题交给监管者或证券自律监管机构,并把监管者的立法作为《证券法》修订前的试错机制。

A strong stock market depends on a complex legal system. Market mechanism, intermediary or- ganizations, the market self-regulatory institutions, enforcement of the court and enforcement by regulators are five important factors to protect the efficient running of securities market. Market mechanism, intermediary or- ganizations, and the market self-regulatory institutions is the micro-foundation for securities market regulation. The court, as the private law enforcement agency, and the regulator, as the public law enforcement agency, are significant to the securities market. And the ultimate goal of regulations is to promote private contracting. In China, the securities market regulatory system has been basically established. But regulatory enforcement is not as good as we expect. The securities law can meet the securities market needs. The securities law should pay at- tention to the fundamental system of the securities market and leave the specific operations to the operators and the intermediaries. The legislations of the operator should better be the experiment of the securities law amend- ment.