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Securities fraud litigation inquiry

Author: GuanHaiPing
Tutor: LiFeng
School: Zhejiang University of Technology
Course: Procedural Law
Keywords: Security defrauds Class Action group action actions brought byassociation
CLC: D925.1
Type: Master's thesis
Year: 2011
Downloads: 48
Quote: 0
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Abstract

Since securities market has been established in china, securities fraud can be foundeverywhere. It directly invades the interests of a great deal of investors. The current system ofsecurities fraud litigation can only adapt to a narrow scope and its operability is not strong. Itis difficult for investors who suffer losses due to violations to gain assistance through civilaction, which will shake investors’confidence seriously and further distort the healthydevelopment of the securities market. Therefore, it is necessary to establish a practical civillitigation relief system.The“fraud”in securities fraud is not only its original meaning in civil law. Securitiesfraud is defined that someone infringes the interests of others and make their own profit bymeans of fraud .Securities fraud has its own unique characteristics, such as, facts of the caseand the defendant’s identity, complexity of the cases and so on. Securities fraud can bedivided into market manipulation, insider trading and false statements in this article.Securities fraud’s lawsuit has experienced a very long process in our country, but it stillcan’t protect the rights of the parties well. Now the separate form of action or the joint formof action is often adopted in lawsuit, but the representative action is ignored. Thisphenomenon has its inherent reason. The representative action has draw lessons from the rulesof a lot of countries though, it is difficult to start, easy to abort and can’t protect the parties’rights. There is a wide gap between the legislation and the practice; which is related to theidealized design of the system.Mature market is usually accompanied by a high level of legislative protection, so it isnecessary for us to learn other countries’rules. The class action is conducive to economic; itprotects the procedural rights of vulnerable groups and makes it possible for many parties toparticipate in the proceedings. But the theory about proper party’s, protecting rights ofindividual investors; efficiency and fairness are faced with difficulties. The group action inGermany originated in the litigation trust. The substantive law is its starting point. The systemfocuses on the prevention of functional. Proceeding is simple and efficient, but is not useful about damage compensation. To better protect the rights of investors, model action wasadopted, model action can reduce the burden of court, ensure the uniformity of application ofthe law. But at the same time, the group effect is difficult to be showed in it, so the verdictmay not be able to adapt to the overall. Taiwan set up the investor protection center to help theparties take proceedings. The scope of group action is expanded to damages remedy, but it islack of the lawsuit motivation and susceptible to the administrative interference. Selectedparty system in Japanese is the extension of class action. It keeps coordination with the civilprocedure law and is very important in the protection of individual rights. But it doesn’t meetthe needs of protecting the general interests. It proves that none of systems can be applicableto everywhere. The perfect system should be adapted to national conditions. It is possible forevery country to learn from each other.There are three views about the completion of representative action system. Somescholars suggest that we should introduce the class action, some prefer group action should beintroduced, some think that the most appropriate action is the model action. Each view has itsown value, but most of these views tend to a particular value of the law. The perfect systemshould pursue the balance of justice，efficiency, economy. Specifically, the design of thesystem should arrive at the balance that protecting the parties’interests, improving theefficiency of proceedings and avoiding arbitrary action. So, in order to complete the system ofrepresentation action, we should complete the system about the lawsuit’s start, trial, andexecutive and supervise on the premise of establishing balanced idea of value. In specialsituations the group litigation system and the model litigation system can be draw to form auseful addition to the representative action system.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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