注册制下重大违法强制退市制度的困境与破解

The Dilemma and Solution of the Compulsory Delisting Mechanism Caused by Serious Violations of Law in the Context of Registration-Based IPO Reform

高效健全的退市制度是深化注册制改革和建设高质量资本市场的重要方面。确立于2014年的重大违法强制退市制度旨在解决核准制下的特殊问题,但在实践中存在时间冗长、适用率低的现实困境,其根本逻辑障碍在于该制度的启动需要以有权机关的生效处罚或判决为前置条件,而证券交易所并非认定"违法"的适格主体,"重大违法"成为限制交易所行使退市自由裁量权的"紧箍咒"。这一问题在注册制改革背景下更加突出,重大违法强制退市制度保护投资者、打击违法行为和维护市场声誉的作用难以发挥。参考境外发达资本市场经验,建议将"重大违法退市"改为"损害证券市场声誉退市",由交易所综合判定;监管层应当从维护公共利益的角度,适度保留强制退市决定权;同时根据公司实际是否存在重大违法行为,适用不同的重新上市条件,以实现对违法公司的惩戒目的。

An efficient and sound delisting mechanism is necessary for advancing the reform of the registration-based IPO mechanism and developing a capital market with high quality.The compulsory delisting mechanism caused by serious violations of law is an important part of delisting mechanisms,which is established in 2014.It was led by CSRC,aiming at solving specific problems under a particular historical context.However,there are some essential logical deficiencies in the compulsory delisting mechanism caused by serious violations of law.The securities exchange is not eligible to determine what is illegal,thus the delisting would proceed only when the CSRC imposes administrative punishment or the court finds guilty.As a result,the securities exchange cannot exercise delisting discretion well.The compulsory delisting mechanism is hard to apply with long procedures,leading to that investor protection,punishment or market reputation maintenance is difficult to achieve.In mature overseas capital markets,it is more common for exchanges to make delisting order in consideration of public interests.It’s necessary to change the compulsory delisting mechanism so the exchange can execute the delisting discretion to prevent a disorderly market.The securities regulatory authority should reserve the authority to determine delisting for the consideration of the public interest.Also,the rule of re-listing should be perfected to make sure that different re-listing rules are applied to companies based on whether there are actually serious violations of law.