论违规超额增持股票行为的民事责任——以“ST新梅案”为分析样本

On Civil Liability for Violation of Rules in Excess of Stock Holdings——Take “ST Xinmei Case” as the Analysis Sample

ST新梅案系违规增持民事司法第一案,受诉法院对上市公司控制权定性不当、理解适用《证券法》第213条规范属性有误,致使受损当事人陷入告诉无门的窘境。ST新梅案的裁判规则客观上诱导甚至强化了市场主体规避法律的机会主义心理,监管部门的行政处罚沦为"漂白"违规增持行为的工具。尽管我国现行法未明确规定违规增持的民事责任,但参照既有关于限制股东表决权的规定,可以证成限制违规者超额部分股票表决权的结论,这也是遏制违规增持实施收购最有效的民事制裁手段。

The ST Xinmei is the first case of civil law to increase its illegal holdings. The courtof appeal characterized that the listed company had improper control over the listed company, andunderstood that the normative attribute of article 213 of the securities law was wrong, causing the in-jured party to be trapped in the dilemma of safeguard legal rights. The judgment rules of ST xinmeicase objectively induce and even strengthen the opportunism psychology of market subjects to avoidlaws. Although China,s current law does not clearly stipulate the civil liability of illegal overweight,it can be proved to be the conclusion of limiting the excess voting rights of the violator by referring tothe existing provisions on restricting the voting rights of shareholders, which is also the most effectivemeans of civil sanctions to curb the illegal increase and implement the acquisition.