美国证券执法和解制度镜鉴

U.S. Securities Law Enforcement Settlement System and its Enlightenment

证券执法和解通过协商方式消除行政争议,并由当事人交纳和解金直接补偿投资者损失,是一种相对柔性的新型执法模式。美国证券执法和解以其灵活的制度设计、便捷的流程和多元化的和解路径,成为美国证券执法的主要手段。同时,在美国证券执法和解实践中出现的有关和解当事人是否需要承认违法、司法审查应当更注重实体还是程序、和解结果是否偏袒大公司等争议应引以为鉴。新《证券法》和《证券期货行政和解实施办法(征求意见稿)》对我国证券执法和解面临的和解条件过于严格、和解程序启动不畅、和解信息公开不足等问题作了针对性的修改完善。进一步优化我国证券执法和解制度,宜从建立公正规范的和解案件选取机制、重视和解公开和司法审查介入、优化和解与刑事追究和民事赔偿机制衔接等方面着力。

Settlement of securities fraud charges is to eliminate administrative disputes through negotiation, and the parties pay monetary fines to directly compensate investors for losses. It is a relatively flexible new securities enforcement mode. With its flexible system design, convenient procedure and diversified paths, settlement has become the main means of U.S. securities enforcement. Meanwhile, we should learn from the disputes in practice, such as whether the parties involved in the settlement need to recognize the violation of the law, whether the judicial review should pay more attention to the entity or the procedure, and whether the settlement results favor large companies. The newly-revised Securities Law and Measures for the Implementation of Securities Law Enforcement Settlement(Draft) have made targeted amendments and improvements to various problems in China’s securities law enforcement settlement system, including excessively strict conditions, the unsmooth beginning of the procedure, insufficient information disclosure, etc. To optimize the securities law enforcement settlement system in China, we need to establish a fair and standardized case selection mechanism, give high priority to the openness of settlement procedures and judicial review, and optimize the connection of settlement, criminal investigation and other civil compensation mechanisms.