债券虚假陈述之作用力与赔偿责任

Force and Liabilities of Bond Misrepresentation

近年来若干巨额债券虚假陈述赔偿判决凸显了厘清相关责任法理的必要性。发行人有义务按约全部兑付债券本息,但仅需就其虚假陈述行为的作用力对投资者产生的相应损失承担侵权责任。其他相关责任主体也只需就此部分损失承担责任。与股票虚假陈述作用力的“连续不分节”不同,债券虚假陈述的作用力以发行人的偿付能力为界线,属于“分节不连续”。投资者的真实选择是在符合自己风险偏好的近似证券品种之间选择“冒险”,故而合理的思路是分析其投资特定证券品种后额外增减的风险。债券虚假陈述的作用力上限为发行人虚增资产或收入的金额与不符合发行条件时的“超募”资金额的孰高者。应赔损失需根据相关司法解释意见扣除非虚假陈述因素导致的结果。虚假陈述被揭露导致债券价格显著下跌和债券违约,引爆整体债务危机的,投资者损失可归责于虚假陈述。虚假陈述被揭露前债券价格已经显著低于兑付值之部分不应归责于虚假陈述。中介机构责任只应产生于对发行人虚假陈述行为有作用力的行为。民事责任只应源于投资者产生信赖的欺诈行为,而非单纯的不合规行为。债券虚假陈述执法、司法应坚持基于虚假陈述的作用力分析,不与债券违约处置简单挂钩,避免形成“司法刚性兑付”。虚假陈述民事责任认定时,应当比行政责任的作用力认定更为准确。

In recent years,several huge bond misrepresentation compensation judgments have highlighted the necessity of clarifying the legal principles of relevant liabilities.The issuer is obliged to pay the principal and interest of the bond in full according to the contract,but only needs to bear the tort liability for the corresponding losses of the investor based on the force of its misrepresentation.Other relevant responsible subjects are only responsible for this part of the loss.Different from the""continuous and non-segmented"effect of stock misrepresentation,the effect of bond misrepresentation is bounded by the issuer's solvency,which is"segmented and discontinuous",Investors'real choice is to choose"risk"between similar securities types that meet their risk preferences.Therefore,a reasonable idea is to analyze the additional increase or decrease of risks after investing in a specific type of securities.The upper limit of the effect of the false statement of the bond is the higher of the amount of the issuer's inflated assets or income and the amount of"over-raised"funds when the issuance conditions are not met.The compensable losses shall be deducted from the results caused by factors other than misrepresentation in accordance with relevant judicial interpretations.Investor losses are attributable to misrepresentation when the misrepresentation is revealed to have led to a significant drop in bond prices and bond defaults,including the triggering of an overall debt crisis.The portion of the bond price that was significantly lower than the redemption value before the misrepresentation was revealed shall not be attributable to the misrepresentation.Intermediary liability should arise only from conduct that has effect on the issuer's misrepresentation.Civil liability should only arise from fraudulent acts in which investors generate trust,not mere non-compliance.The intermediary agency should undertake part of the civil liability in accordance with the degree of its fault in an asymmetric structure with the issuer,which has both the legitimacy of the factual basis and a certain legal basis.The law enforcement and judicial process of bond misrepresentation should adhere to the force analysis based on misrepresentation,and should not be simply linked to the disposal of bond defaults,so as to avoid the formation of"judicial rigid redemption".The determination of civil liability for misrepresentation should be more accurate than the determination of the effect of administrative liability.