资本市场信息披露双层规范体系的基本建构

The Basic Construction of a Two-Tier Norm System for Information Disclosure in the Capital Market

我国资本市场信息披露规范以公开发行为主体,对私募发行缺少系统性规定,需要构建信息披露公开发行与私募发行双层规范体系。可以借助契约经济学为解决信息不对称而提出的激励机制和风险缓释机制两种理论工具来建立完善信息披露双层规范体系。在立法层面,激励性规范应当有助于发行人按照成本收益考量选择适合的募集方式,风险缓释规范应当围绕股份流通与投资者适格进行区分配置。在监管层面,基于激励性规范,公开发行实施注册制监管、以信息披露为核心,私募发行采用豁免制监管、以效率优先为理念;基于风险缓释规范,公开发行监管致力于明晰有关主体责任界限,私募发行监管重在厘清私募范围、有限度采用公开劝诱规则。在司法层面,由于公开发行虚假陈述主要表现为侵权责任、私募发行虚假陈述大多表现为违约责任,故应当严格区分双层规范下虚假陈述行为人承担民事责任的请求权基础。

China's capital market information disclosure norms take public offering as the main body,and there is a lack of systematic regulations on private offering,so it is necessary to build a two-tier norm system of public offering and private offering for information disclosure.Two theoretical tools,an incentive mechanism and a risk mitigation mechanism,which are proposed by contract economics to solve information asymmetry,can be used to establish and perfect the two-tier norm system for information disclosure.At the legislative level,incentive norms should help issuers choose suitable fund-raising methods according to cost-benefit considerations,and risk mitigation norms should be differentiated around share circulation and investor qualifications.At the regulatory level,based on incentive norms,public offering implements registration system supervision with information disclosure as the core,while private offering adopts exemption system supervision with efficiency as the priority.Based on the risk mitigation norms,the supervision of public offering is committed to clarifying the boundaries of responsibility of relevant subjects,and the supervision of private offering is focused on clarifying the scope of private offering with limited use of public persuasion rules.At the judicial level,since the false statement in the public offering is mainly represented by tort liability,the false statement in the private offering is mostly represented by breach of contract liability,we should strictly distinguish the basis of the claim right of the actor of false statements to bear civil liability under the two-tier norm.