我国证券虚假陈述帮助者责任的借鉴与构建

Reference and Construction of Helper Liability for Securities Misrepresentation in China

证券虚假陈述中帮助者责任的构建能够对于相关责任主体的行为发挥威慑的作用,并且责任主体扩张对于个体企业的经营负担增加,以及整体滥诉风险相对可控。结合美国司法实践中对于“教唆、帮助者”责任从认可,到否定,再到实践中寻求其他路径追究帮助者责任的发展历程,我国对于虚假陈述帮助者责任的构建需要在持续推进的基础上进一步精细化帮助者责任认定与承担的规则,并且发挥行政处罚在其中的协同作用。在帮助者责任承担的形式上,参考对于中介机构责任已经做出的判决,采取比例连带责任的形式对其责任予以限缩更为合适。

The construction of helper responsibility in securities misrepresentation can play a deterrent role in the behavior of relevant responsible entities, and the expansion of responsible entities will increase the operating burden of individual enterprises, and the overall risk of abusive litigation is relatively controllable. Combined with the development process of the liability of “instigating and helping” in the United States in judicial practice, from recognition to denial, and then to seeking other ways to pursue the responsibility of helpers in practice, the construction of the liability of helpers for misrepresentation in China needs to further refine the rules for determining and bearing the responsibility of helpers on the basis of continuous advancement, and give full play to the synergistic effect of administrative penalties in it. In terms of the form of the liability of the helper, it is more appropriate to limit the liability of the intermediary in the form of proportional joint and several liability, referring to the judgment that has been made on the liability of the intermediary.