“股债区分”视野下证券虚假陈述民事责任的要素考量

Element Consideration of Civil Liability for Securities Misrepresentation from the Perspective of“Distinction between Equity and Debt”

虽然新虚假陈述司法解释已经为司法裁判树立起一套标准体系,但伴随着案件的复杂多样化,实践中许多金融产品虚假陈述行为的“合法”与“非法”、“有责”与“无责”、“责重”与“责轻”等问题还存在不少争议。细究缘由,争议大多产生于“某金融产品是否构成证券”“中介机构是否需要承担连带责任”这两个问题。本文认为,应该在功能主义项下以“实质证券”的概念为基础,充分认知股票和债券在风险逻辑上的不同,合理考量公开发行与非公开发行、场内与场外的区别,准确限定“欺诈市场理论”的适用范围,合理划分发行人和中介机构的责任承担,准确理解新虚假陈述司法解释项下有关“过错认定”的规则,以此作为解释和适用《证券法》项下连带责任的前提与基础。

Although the new judicial interpretation of misrepresentation in the securities market has established a standard system for judicial rulings,there remain many disputes in practice regarding the boundary of being legal or illegal,liability or non-liability,strict liability or proportional liability of misrepresentation in various financial products as cases become complex and diverse.Upon closer examination,most disputes arise from the questions of whether a financial product constitutes a security and whether intermediary institutions should bear joint and several liability.This paper suggests that based on the concept of“substantive securities”under the principle of functional regulation,it is essential to fully recognize the different risk logics of equity and debt,reasonably consider the distinctions between public offering and private offering as well as exchange trading and over-the-counter trading,accurately define the application scope of the“fraud-on-the-market theory,”appropriately allocate liabilities between issuers and intermediaries,and correctly understand the rule for“fault determination”under the new judicial interpretation of misrepresentation.All of these serve as the premise and foundation for interpreting and applying joint and several liability under the Securities Law.