论虚假陈述责任人的内部责任分配

The Internal Responsibility Distribution Among Persons Responsible for False Statement

我国《证券法》第85条和第163条对虚假陈述责任人内部责任分配的立法缺失,导致责任人最终份额确定面临难题。通过科学合理的方式确定责任人“各自责任大小”进而确定其“应承担的份额”确属必要。责任人间的责任分配以各方承担共同责任为前提,且不要求债务已全部或部分清偿。过错程度和原因力为典型的共同责任内部分配标准。过错程度标准在于通过考察责任人是否参与虚假陈述、是否明知虚假陈述及违背注意义务程度等,判定责任人主观状态为故意、重大过失或一般过失,从而确定其责任份额。原因力标准在于比较各责任人在交易因果关系和损失因果关系发生中的原因力,根据投资者对各责任人的信赖程度和各责任人在虚假陈述中发挥的作用确定其责任份额。

Article 85 and Article 163 of The Securities Law of China lack legislation on the distribution of internal liability of the person liable for false statements,which leads to the difficulty in determining the final share of the person liable.It is necessary to determine the“respective responsibilities”of the responsible persons in a scientific and reasonable way and then determine their“shares”.The distribution of responsibilities between the persons liable is premised on the assumption that all parties bear joint responsibilities and does not require that all or part of the debts be paid off.The degree of fault and the force of cause are typical internal distribution standards of joint liability.The fault degree standard is to determine the subjective state of the responsible person as intentional,gross negligence or general negligence by judging whether the responsible person participates in the false statement,should have known the false statement clearly and violates the duty of care,etc,so as to determine the liability share.The criterion of causative force is to compare the causative force of each responsible person in the causative relationship between transaction and loss,and to determine their share of liability according to the degree of trust of investors in each responsible person and the role each responsible person plays in false statements.