审验机构虚假陈述民事责任的制度机理——以威慑功能的实现为逻辑轴线

The Institutional Mechanism of Civil Liability for the Misrepresentation of Verification Institutions——The Realization of Deterrence Function as the Logical Axis

审验机构民事责任机制的主要功能是对潜在的不法行为人形成有效威慑,以督促其勤勉尽责地履行证券市场“看门人”职能,而非以填补损害为主要目的。法定连带责任制度对于确保投资者获得充分的损害填补具有积极作用,却可能造成“深口袋”效应从而使其异化为担保责任,对审验机构的正常经营活动造成不当干扰。比例连带责任的适用和司法解释限缩审验机构过错认定标准的尝试,在一定程度上缓解了连带责任的消极影响,却也存在欠缺法律依据、未能全面回应实践争议的问题。为了确保审验机构的责任与过错相一致,实现民事责任机制督促审验机构勤勉尽责的威慑功能,《证券法》宜将审验机构的民事责任形式更改为按份责任,以期在督促审验机构勤勉尽责和避免干扰其正常运营之间实现适当的平衡。

The main function of the civil liability of the verification institutions is to form an effective deterrence to the potential wrongdoers and urge them to fulfill the gatekeeper function of the securities market diligently,rather than to fill the damages. The legal joint and several liability plays a positive role in ensuring that investors get sufficient compensation for damages, but it may cause “deep pocket” effect and make it dissimilar to guarantee liability, which will cause improper interference to the normal business activities of the verification institutions. Although the application of proportional joint and several liability and the attempt of judicial interpretation to limit the fault identification standard of verification institutions alleviate the negative impact of joint and several liability to some extent, they are faced with the problems of insufficient legitimacy basis and failure to fully respond to the practical disputes. In order to ensure that the verification institutions’ responsibility is consistent with the fault, and realize the deterrence function of using civil liability mechanism to urge the verification institutions to be diligent and responsible, the Securities Law should change the form of civil liability of verification institutions into proportional liability, so as to achieve a proper balance between urging the verification institutions to be diligent and responsible and avoiding interference with its normal operation.