《证券法》修改背景下中国证券立法的演进与评价 -证券法基本原则角度的审视-

Abstract

Chinese SecuritiesLaw has come through 20 years’ development since its first enactment in 1998. As a major stipulation regulating the capital market, the Securities Law concerns the overall capital market’s stability and development. After the Third Draft of Securities Law’s publicity, the Law’s Fourth Draft was passed on Oct 28th, 2019, and a new Securities Law(hereinafter referred to as the “2019 Revision”) is to be announced on Mar 1st, 2020. It can be said that the Law’s legislation has been processed under the guidance of its basic legal principles.The research looks into the legislative process and trend of Chinese Securities Law from the perspectives of two basic principles: the principle of self-discipline with centralized supervision and the principle of investor protection, and gives suggestions. The principle of self-discipline with centralized supervision discloses the following three points. Firstly, China slackened the severe regulations on the stock market, which were laid down in the context of the Asian Economic Crisis and the market’s turbulence, and established several legal systems for the market’s renovation and development. Secondly, China gradually standardized the government’s intervention implemented through financial supervision policies that had a great influence on the stock market in the past. Recently, the nation formalized financial policy making procedures and perfected the legality and propriety of the supervision policies. Last but not least, China prevented itself from the abuse of power in terms of securities supervision by perfecting the legislation, and offered an institutional guarantee for the validity of supervision. On the other hand, the principle of investor protection unveils below two points. For one thing, China continued to build up and improve the litigation and mediation mechanisms. The 2005 Amendment of the Securities Law brought in the civil compensation system aimed at securities violations. And the 2019 Revision tried to build up the remedy for investors by proposing the mediation mechanism for securities related disputes and the shareholder(of Investor Protection Corporation) representative lawsuit system. For another, China imported investor protection related specialized systems. The 2005 Amendment constructed the securities investor protection fund system. In the 2019 Revision, investors were even divided into the ordinary and professional investors. The Third Draft also suggested the investor’s adequacy management obligation. As can be seen from the panorama, not only has china been completing the central supervision, but it has been strengthening the investor’s protection by 20 years’ legislation. Henceforth, the legislation should emphasize the regulatory roles of such self-discipline corporations as stock exchange markets and securities associations; set up social supervision mechanisms; take logicality among different legislation into full consideration as well as handle coordination and compatibility between the Securities Law and the Company Law properly.