虚假陈述中介机构连带责任的检视与改革

Rethinking and Reforming Joint and Several Liability of Intermediaries for Misrepresentation

由监管主导的现行《证券法》对中介机构民事责任的配置主要基于监管政策目标考虑,即确保投资者充分获赔、威慑阻遏欺诈,但《证券法》简单刚性的连带责任规定对司法环节关注不足;法院处在监管导向的法律规定与自身“公平合理分配责任”的角色要求的拉扯困境中,开始在个案中尝试限缩连带责任给中介机构带来的过大风险敞口。中介机构连带责任之赔偿与阻遏功能设想存在问题:完全赔偿的价值导向有其视野局限,而通过连带责任最大化投资者赔付存在系统性的激励扭曲问题,影响市场稳健性;威慑阻遏功能在故意、明知与过失情形下的实现路径不同,连带责任的探查激励效果有情形局限。未来应修改《证券法》,剥离中介机构民事责任上的过度监管目标考量,回归司法裁判视角;结合侵权责任原理,分类限缩连带责任的适用,引入比例责任、修正的连带责任等多样化的责任形态与赔偿分摊安排,满足法院避免中介机构过责失衡的规则需要。

The joint and several liability of intermediaries under the current Security Law,whose legislation is dominated by regulatory agency,is calculated to advance the goals of regulatory policies,that is,to guarantee investors a full compensation and deter securities fraud by pressuring intermediaries to be more prudent.Since the civil liability clause is substantially shaped by preferences of the regulatory agency,rather than the real need of the adjudication system,the judiciary seems to get stuck in confusion between the“domineering securities regulation”and its own inherent objective of apportioning responsibilities based on fault reasonably and fairly.There also emerges an interesting phenomenon,if not a trend yet,that some courts are going to limit the excessive risk exposure of intermediaries brought by joint and several liability of the Securities Law.Re-examining the presumptions underlying the functions of joint and several liability can shed light on the proposals to narrow joint and several liability.On the one hand,the full compensation to plaintiffs is not an absolute and incontestable claim and joint and several liability might create systematically distorted incentives among security market participants,undermining the robustness of securities markets.On the other hand,there are totally different paths to cause deterrence for“intentionally”“knowingly”and“recklessly”situations,and joint and several liability would not necessarily create and impose salient incentives on intermediaries to increase input for fraud detection in some scenarios.For the policy implication and legislation reform,undue regulatory concerns should be divided away from the civil liability clause.Also,diversified liabilities like proportional liability and modified joint and several liability should be included and the formulation of the Securities Law should be adjusted to give courts more leeway to apportion responsibilities more flexibly,by doing so,avoiding the disproportion of responsibilities to fault.