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Notice by the Supreme People's Court of Issuing the Several Opinions on Providing Judicial Guarantees for the Establishment of the STAR Market and the Pilot Program of the Registration System Reform [Effective]
最高人民法院印发《关于为设立科创板并试点注册制改革提供司法保障的若干意见》的通知 [现行有效]
【法宝引证码】

Notice by the Supreme People's Court of Issuing the Several Opinions on Providing Judicial Guarantees for the Establishment of the STAR Market and the Pilot Program of the Registration System Reform 

最高人民法院印发《关于为设立科创板并试点注册制改革提供司法保障的若干意见》的通知

(No. 17 [2019] of the Supreme People's Court) (法发[2019]17号)

The higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous: 各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院:
The Several Opinions of the Supreme People's Court on Providing Judicial Guarantees for the Establishment of the STAR Market and the Pilot Program of the Registration System Reform are hereby issued to you for your conscientious implementation. 现将《最高人民法院关于为设立科创板并试点注册制改革提供司法保障的若干意见》印发给你们,请认真贯彻执行。
June 20, 2019 2019年6月20日
Several Opinions of the Supreme People's Court on Providing Judicial Guarantees for the Establishment of the STAR Market and the Pilot Program of the Registration System Reform 最高人民法院关于为设立科创板并试点注册制改革提供司法保障的若干意见
The establishment of the STAR Market and the launch of the pilot program of the registration system at the Shanghai Stock Exchange (hereinafter referred to as the "SSE") is an important measure of the central authorities to implement the innovation-driven development strategy and advance high-quality development, and is an important arrangement for deepening the capital market reform. For the purposes of maximizing the role of the adjudicative function of people's courts, jointly promoting the overall advancement of the reform of issue, listing, information disclosure, trading, delisting and other basic systems for the capital market, maintaining an open, fair and equitable order of the capital market, and protecting the lawful rights and interests of investors, the following opinions are hereby offered on issues during the pilot program of the registration system reform such as people's courts' correct trial of cases relating to the STAR Market. 在上海证券交易所(以下简称上交所)设立科创板并试点注册制, 是中央实施创新驱动发展战略、推进高质量发展的重要举措,是深化资本市场改革的重要安排。为充分发挥人民法院审判职能作用,共同促进发行、上市、信息披露、交易、退市等资本市场基础制度改革统筹推进,维护公开、公平、公正的资本市场秩序,保护投资者合法权益,现就注册制改革试点期间人民法院正确审理与科创板相关案件等问题,提出如下意见。
I. Heightening awareness and enhancing the consciousness and initiative to provide judicial guarantees for the establishment of the STAR Market and the pilot program of the registration system reform. 一、提高认识,增强为设立科创板并试点注册制改革提供司法保障的自觉性和主动性
1. Fully understanding the importance of the establishment of the STAR Market and the pilot program of the registration system reform. At the opening ceremony of the first China International Import Expo, General Secretary Xi Jinping announced the establishment of the STAR Market and the launch of the pilot program of the registration system at the SSE, fully reflecting the great importance attached to and ardent hope entertained for the reform and development of the capital market by the CPC Central Committee with Comrade Xi Jinping as the core. The Central Economic Work Conference was of the view that the capital market played a leading role in financial operation and a well-regulated, transparent, open, dynamic and resilient capital market should be built by deepening reforms. Starting from the establishment of the STAR Market, steadily conducting the pilot program of the registration system for stock issuance is not only an important reflection of deepening the structural reform of the financial supply side and improving the basic systems for the capital market, but also helpful in better utilizing the function of the capital market to support the improvement of innovation in critical technologies and the competitiveness of the real economy and better serving high-quality development. People's courts at all levels shall adhere to following the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics in a New Era, conscientiously implement the spirit of a series of important instructions on the capital market from General Secretary Xi Jinping, properly tackle new situation and new problems in disputes relating to the STAR Market, intend the protection of the lawful rights and interests of investors and the prevention and resolution of financial risks as a fundamental task of securities adjudication, and create a good judicial environment for accelerating the shaping of a multi-level capital market system with sound financing functions, solid basic systems, effective market regulation, and effective protection of lawful rights and interests of investors.   1、充分认识设立科创板并试点注册制的重要意义。习近平总书记在首届中国国际进口博览会开幕式上宣布在上海证券交易所设立科创板并试点注册制,充分体现了以习近平同志为核心的党中央对资本市场改革发展的高度重视和殷切希望。中央经济工作会议提出,资本市场在金融运行中具有牵一发而动全身的作用,要通过深化改革,打造一个规范、透明、开放、有活力、有韧性的资本市场。从设立科创板入手,稳步试点股票发行注册制,既是深化金融供给侧结构性改革、完善资本市场基础制度的重要体现,也有利于更好发挥资本市场对提升关键技术创新和实体经济竞争力的支持功能,更好地服务高质量发展。各级人民法院要坚持以习近平新时代中国特色社会主义思想为指导,认真落实习近平总书记关于资本市场的一系列重要指示批示精神,妥善应对涉科创板纠纷中的新情况、新问题,把保护投资者合法权益、防范化解金融风险作为证券审判的根本性任务,为加快形成融资功能完备、基础制度扎实、市场监管有效、投资者合法权益得到有效保护的多层级资本市场体系营造良好司法环境。
2. Accurately grasping the orientation of the STAR Market and arrangements for the pilot program of the registration system. The STAR Market is an incremental reform of the capital market and a "test bed" for reforming and innovating basic systems for the capital market. The STAR Market mainly serves science and technology innovation enterprises that conform to any national strategy, make any breakthrough in critical core technologies and highly recognized on the market, has more inclusive conditions for issuance and listing, makes no requirements that an enterprise be profitable before listing, allows enterprises with a "weighted voting right structure" and red chip enterprises that comply with the requirements of pilot programs of innovation to be listed, and implements more market-oriented systems such as underwriting, trading, mergers and acquisitions, and delisting. With authority of the Standing Committee of the National People's Congress, the relevant provisions of the Securities Law of the People's Republic of China on the confirmation system for public offerings of stock shall be adjusted in the process of the reform of the registration system for stock issuance. The pilot program of the registration system shall be generally divided into two links: SSE examination and registration with the China Securities Regulatory Commission ("CSRC"). The CSRC shall supervise the SSE's examination work and establish and improve a stock issuance and listing system centered on information disclosure. People's courts at all levels shall adhere to the general working tone of seeking progress in stability, based on criminal, civil and administrative securities adjudication, identify the entry point for the work, further implement the reform arrangements and policy requirements of the central authorities by lawful adjudication, promote the formation of a good market ecology in which all market participants perform their duties according to the law, are duly dutiful and have their lawful rights and interests effectively protected, and provide powerful judicial guarantees for investors to invest feeling secure and for science and technology innovation companies to innovate boldly.   2、准确把握科创板定位和注册制试点安排。科创板是资本市场的增量改革,也是资本市场基础制度改革创新的“试验田”。科创板主要服务于符合国家战略、突破关键核心技术、市场认可度高的科技创新企业,发行上市条件更加包容,不要求企业上市前必须盈利,允许“同股不同权”企业和符合创新试点规定的红筹企业上市,实行更加市场化的发行承销、交易、并购重组、退市等制度。根据全国人大常委会授权,股票发行注册制改革过程中调整适用《中华人民共和国证券法》关于股票公开发行核准制度的有关规定。本次注册制试点总体分为上交所审核和证监会注册两个环节,证监会对上交所的审核工作进行监督,建立健全以信息披露为中心的股票发行上市制度。各级人民法院要坚持稳中求进工作总基调,立足证券刑事、民事和行政审判实际,找准工作切入点,通过依法审判进一步落实中央改革部署和政策要求,推动形成市场参与各方依法履职、归位尽责及合法权益得到有效保护的良好市场生态,为投资者放心投资,科创公司大胆创新提供有力司法保障。
II. Respecting the law of the development of the capital market and guaranteeing the smooth progress of the reform of the stock issuance system based on market mechanisms according to the law 二、尊重资本市场发展规律,依法保障以市场机制为主导的股票发行制度改革顺利推进
3. Supporting the SSE in prudently examining stock issuance and listing. According to the reform arrangement, the SSE shall mainly conduct examination in a manner in which examination questions are put to issuers, and issuers answer the questions. In the trial of a case, if the issuer or any of its sponsors or securities service institutions discloses information containing any false record, misleading statement or material omission in the in the application documents for issuance and listing or in the link of answering questions, it shall be ordered to assume the legal liability for false statements; and if any false statement results in fraudulent obtainment of issuance examination and registration, it shall be ordered to assume the legal liability for fraudulent issuance. In order to guarantee the smooth progress of the reform of the issuance system, disputes over securities issuance, disputes over a securities underwriting contract, disputes over a securities listing sponsorship contract, disputes over a securities listing contract, disputes over securities fraud liability, and other civil and commercial cases under original jurisdiction involving enterprises that launch an initial public offering of stock and listing on the STAR Market shall be under the centralized jurisdiction of the Shanghai Financial Court on a pilot-program basis.   3、支持证券交易所审慎开展股票发行上市审核。根据改革安排,上交所主要通过向发行人提出审核问询、发行人回答问题方式开展审核工作。在案件审理中,发行人及其保荐人、证券服务机构在发行上市申请文件和回答问题环节所披露的信息存在虚假记载、误导性陈述或者重大遗漏的,应当判令承担虚假陈述法律责任;虚假陈述构成骗取发行审核注册的,应当判令承担欺诈发行法律责任。为保障发行制度改革顺利推进,在科创板首次公开发行股票并上市企业的证券发行纠纷、证券承销合同纠纷、证券上市保荐合同纠纷、证券上市合同纠纷和证券欺诈责任纠纷等第一审民商事案件,由上海金融法院试点集中管辖。
4. Guaranteeing that the SSE implements self-regulation according to the law. Because of characteristics such as the inclusive listing threshold of the STAR Market and the rapid technological iteration and lengthy period before reaching profitability of science and technology innovation companies, it is objectively necessary to strengthen interim and ex-post regulation. For issuance, listing, continual regulation, and other business rules for the STAR Market developed by the SSE according to the statutory procedures, people's courts may apply them mutatis mutandis in accordance with the law at the time of trying cases, as long as such business rules do not contravene the mandatory provisions of the laws and regulations. In order to harmonize adjudicative standards, finance-related civil and commercial cases and administrative cases under original jurisdiction respecting the duties of performance by the SSE in which it is defendant or third party shall remain under the jurisdiction of the Shanghai Financial Court, according to the provisions of Article 3 of the Provisions of the Supreme People's Court on the Jurisdiction of the Shanghai Financial Court (Interpretation No. 14 [2018], SPC).   4、保障证券交易所依法实施自律监管。由于科创板上市门槛具有包容性和科创公司技术迭代快、盈利周期长等特点,客观上需要加强事中事后监管。对于证券交易所经法定程序制定的科创板发行、上市、持续监管等业务规则,只要不具有违反法律法规强制性规定情形,人民法院在审理案件时可以依法参照适用。为统一裁判标准,根据《最高人民法院关于上海金融法院案件管辖的规定》(法释〔2018〕14号)第三条的规定,以上海证券交易所为被告或者第三人与其履行职责相关的第一审金融民商事案件和行政案件,仍由上海金融法院管辖。
5. Ensuring the effective implementation of the arrangement for the civil liability system for stock issuance centered on information disclosure. The enforcement of civil liability is an important link to compel information disclosure obligors to perform dutifully and is the key to whether the law can "grow teeth." In the commercial securities adjudication, the primary responsibility of issuers and their associates shall be strictly implemented as required by the reform. If the controlling shareholder or actual controller of an issuer instructs the issuer to make fraudulent issuance or a false statement, the controlling shareholder or the actual controller shall be ordered in accordance with the law to directly assume civil liability towards investors. Securities service institutions' responsibility for verification and control for the purposes of protecting the interests of investors shall be strictly implemented. If a securities service institution fails to exercise special care with respect to any business matter relating to its specialty such as accounting and law, or fails to exercise ordinary care with respect to any other business matter, it shall be ordered to assume corresponding legal liability. The standards of care which a sponsor exercises in the comprehensive verification of information disclosures of the issuer such as listing application documents shall be accurately grasped, and on the basis of exercise of special care by a securities service institution, the sponsor shall objectively and neutrally conduct substantial verification of the issuer's operation and risks, otherwise it fails to meet the standards of proof justifying an excuse. For a list company that commits no violation of the laws and regulations and solely fails in operation, the "caveat emptor" principle as to investment risks in the Securities Law shall be strictly implemented, so as to guide investors in improving their risk identification capabilities and awareness of rational investment.   5、确保以信息披露为中心的股票发行民事责任制度安排落到实处。民事责任的追究是促使信息披露义务人尽责归位的重要一环,也是法律能否“长出牙齿”的关键。在证券商事审判中,要按照本次改革要求,严格落实发行人及其相关人员的第一责任。发行人的控股股东、实际控制人指使发行人从事欺诈发行、虚假陈述的,依法判令控股股东、实际控制人直接向投资者承担民事赔偿责任。要严格落实证券服务机构保护投资者利益的核查把关责任,证券服务机构对会计、法律等各自专业相关的业务事项未履行特别注意义务,对其他业务事项未履行普通注意义务的,应当判令其承担相应法律责任。准确把握保荐人对发行人上市申请文件等信息披露资料进行全面核查验证的注意义务标准,在证券服务机构履行特别注意义务的基础上,保荐人仍应对发行人的经营情况和风险进行客观中立的实质验证,否则不能满足免责的举证标准。对于不存在违法违规行为而单纯经营失败的上市公司,严格落实证券法投资风险“买者自负”原则,引导投资者提高风险识别能力和理性投资意识。
6. Respecting that listed companies on the STAR Market create a corporate governance structure commensurate with the characteristics of science and technology innovation. If a listed company on the STAR Market make a weighted voting right arrangement before listing, the people's court shall, with authorization by the Standing Committee of the National People's Congress with respect to the reform of the registration system for stock issuance and the provisions of Article 131 of the Company Law, recognize the effects of any relevant resolution of the shareholders' assembly according to the law. If a listed company on the STAR Market expands the scope of recipients of share incentives in order to maintain the stability of its entrepreneurial team and core personnel, the effects of the expansion shall be recognized in accordance with the law, so as to protect the lawful rights and interests of the recipients, as long as the expansion is not in contravention of the mandatory provisions of the laws and administrative regulations.   6、尊重科创板上市公司构建与科技创新特点相适应的公司治理结构。科创板上市公司在上市前进行差异化表决权安排的,人民法院要根据全国人大常委会对进行股票发行注册制改革的授权和公司法一百三十一条的规定,依法认定有关股东大会决议的效力。科创板上市公司为维持创业团队及核心人员稳定而扩大股权激励对象范围的,只要不违反法律、行政法规的强制性规定,应当依法认定其效力,保护激励对象的合法权益。
7. Strengthening the judicial protection of the intellectual property of listed companies on the STAR Market. Patent right, technology contract and other intellectual property cases relating to listed companies on the STAR Market shall be tried in accordance with the law, compensation for infringement of intellectual property involving science and technology innovation shall be increased to fully reflect the market value of scientific and technological achievements, and for bad faith infringement with serious circumstances, an order that punitive compensation liability be assumed shall be made according to the law. The function of judicial supervision of intellectual property shall be further exerted, the establishment of a force trial system in civil actions for infringement of patents shall be actively explored, the substantial settlement of administrative disputes over intellectual property shall be promoted, and the lawful intellectual property rights and interests of listed companies on the STAR Market shall be maintained.   7、加强对科创板上市公司知识产权司法保护力度。依法审理涉科创板上市公司专利权、技术合同等知识产权案件,对于涉及科技创新的知识产权侵权行为,加大赔偿力度,充分体现科技成果的市场价值,对情节严重的恶意侵权行为,要依法判令其承担惩罚性赔偿责任。进一步发挥知识产权司法监督职能,积极探索在专利民事侵权诉讼中建立效力抗辩审理制度,促进知识产权行政纠纷的实质性解决,有效维护科创板上市公司知识产权合法权益。
III. Maintaining an open, fair and equitable market order and raising the cost of violations of the laws and regulations on the capital market in accordance with the law. 三、维护公开公平公正市场秩序,依法提高资本市场违法违规成本
8. Strictly cracking down on securities crimes and financial corruption crimes that interfere with the registration system reform and maintaining the order of the securities market. All kinds of fraud and corruption crimes that tend to occur in application for issuance and registration and other links shall be strictly punished according to the law. If an issuer and an intermediary collude in fraudulent obtainment of issuance registration, or any functionary directing examination or registration of issuance trades power for private benefits, accepts bribes or takes benefits by tunneling, the offender shall be strictly held criminally liable according to the law. The duty of verification of issuer information by sponsors shall be effectively implemented, and if a sponsor knows or should have known that the issuer falsifies or conceals important information or fraudulently obtains issuance registration, the sponsor shall be held criminally liable in accordance with the law. Financial criminals that disclose in violation or fail to disclose important information, engage in insider trading, use undisclosed information in trading, or manipulate the securities market shall be strictly punished, the application of probation shall be strictly controlled, and economic punishment such as fines shall be increased according to the law. Any enterprise or individual that fraudulently obtains any national grant in support of science and technology or government bailout in bad faith shall be held criminally liable in accordance with the law. The construction of a criminal information sharing mechanism with the administrative securities regulatory authorities shall be strengthened, and if clues relating to alleged crimes are discovered in the trial of securities cases, a report shall promptly made to the criminal investigation authorities, with the relevant materials referred. The improvement of criminal legislation on securities shall be promoted, and relevant judicial interpretations shall be developed and issued in a timely manner, so as to provide legal protection for promoting the sound development of the market.   8、严厉打击干扰注册制改革的证券犯罪和金融腐败犯罪,维护证券市场秩序。依法从严惩治申请发行、注册等环节易产生的各类欺诈和腐败犯罪。对于发行人与中介机构合谋串通骗取发行注册,以及发行审核、注册工作人员以权谋私、收受贿赂或者接受利益输送的,依法从严追究刑事责任。压实保荐人对发行人信息的核查、验证义务,保荐人明知或者应当明知发行人虚构或者隐瞒重要信息、骗取发行注册的,依法追究刑事责任。依法从严惩治违规披露、不披露重要信息、内幕交易、利用未公开信息交易、操纵证券市场等金融犯罪分子,严格控制缓刑适用,依法加大罚金刑等经济制裁力度。对恶意骗取国家科技扶持资金或者政府纾困资金的企业和个人,依法追究刑事责任。加强与证券行政监管部门刑事信息共享机制建设,在证券案件审理中发现涉嫌有关犯罪线索的,应当及时向侦查部门反映并移送相关材料。推动完善证券刑事立法,及时制定出台相关司法解释,为促进市场健康发展提供法律保障。
9. Accepting and trying disputes over securities fraud liability and strengthening the civil liability for compensation to which violators of the laws and regulations are subject. According to the arrangement for the pilot program of the registration system, the examination of stock issuance and listing shifts from the past regulatory authorities' substantive judgments on issuers' qualification conditions to centering on information disclosure, so that investors mainly judge the value of securities on their own. In the trial of a false statement case relating to a listed company on the STAR Market, information disclosures subject to examination shall include not only general information disclosures such as prospectus, annual reports, and interim reports, but also each reply to examination question and public undertakings made by the information disclosure obligor; and in addition to examining the authenticity, accuracy, completeness, timeliness and fairness of information disclosure, it shall be brought into focus, based on characteristics of the high professionalism and technical nature of listed companies on the STAR Market, whether disclosures are concise, understandable, and easy for general investors to read and understand. If any member of the senior management or core employee of an issuer participates in placement in issuance through a special asset management plan, the people's court shall presume his or her knowledge of the issuer's false statement and reject the claim for compensation for loss made by the manager or any beneficiary of the asset management plan. The survey and guidance of civil compensation cases arising from insider trading or market manipulation shall be strengthened, and the elements of the civil compensation liability that violators of the laws and regulations have towards investors and the scope of compensation shall be vigorously explored. The judicial enforcement efforts in administrative punishment cases and civil compensation cases related to the STAR Market shall be increased, so as to cause violators of the laws and regulations to pay a price for violation in a timely manner.   9、依法受理和审理证券欺诈责任纠纷案件,强化违法违规主体的民事赔偿责任。根据注册制试点安排,股票发行上市审核由过去监管部门对发行人资格条件进行实质判断转向以信息披露为中心,主要由投资者自行判断证券价值。在审理涉科创板上市公司虚假陈述案件时,应当审查的信息披露文件不仅包括招股说明书、年度报告、临时报告等常规信息披露文件,也包括信息披露义务人对审核问询的每一项答复和公开承诺;不仅要审查信息披露的真实性、准确性、完整性、及时性和公平性,还要结合科创板上市公司高度专业性、技术性特点,重点关注披露的内容是否简明易懂,是否便于一般投资者阅读和理解。发行人的高级管理人员和核心员工通过专项资产管理计划参与发行配售的,人民法院应当推定其对发行人虚假陈述行为实际知情,对该资产管理计划的管理人或者受益人提出的赔偿损失诉讼请求,不予支持。加强对内幕交易和操纵市场民事赔偿案件的调研和指导,积极探索违法违规主体对投资者承担民事赔偿责任的构成要件和赔偿范围。加大对涉科创板行政处罚案件和民事赔偿案件的司法执行力度,使违法违规主体及时付出违法违规代价。
10. Trying company disputes in accordance with the law and raising investors' confidence in investment in the STAR Market. Possible corporate governance problems in listed companies on the STAR Market that result from special voting rights such as "minority control" and "insider control" shall be actively surveyed, and if the STAR Market listing rules are so contravened by means of corporate self-governing as to harm the lawful rights of ordinary shareholders, people's courts shall deny the effects of the conduct according to the law, prohibit shareholders holding special voting rights from abusing their rights, and prevent the misuse of the system's functions. In the trial of cases, the limits of the rights of shareholders holding special voting rights shall be accurately defined, and the principle that "control fits liability" shall be adhered to, so as to achieve "weighted liability" in the case of "weighted voting rights." Damage liability disputes arising from affiliate transactions of companies shall be accurately tried, and a controlling shareholder, actual controller, or any other responsible party of a company that causes damage to the interests of the company through affiliate transactions shall be subject to civil compensation liability, notwithstanding performance of the statutory company resolution procedure; and if an affiliate transaction contract is void or avoidable, and a qualified shareholder claims rights against the opposite party to the affiliate transaction contract by shareholder representative action, the claim shall be granted according to the law.   10、依法审理公司纠纷案件,增强投资者对科创板的投资信心。积极调研特别表决权在科创板上市公司中可能存在的“少数人控制”“内部人控制”等公司治理问题,对于以公司自治方式突破科创板上市规则侵犯普通股东合法权利的,人民法院应当依法否定行为效力,禁止特别表决权股东滥用权利,防止制度功能的异化。案件审理中,要准确界定特别表决权股东权利边界,坚持“控制与责任相一致”原则,在“同股不同权”的同时,做到“同股不同责”。正确审理公司关联交易损害责任纠纷案件,对于通过关联交易损害公司利益的公司控股股东、实际控制人等责任主体,即使履行了法定公司决议程序也应承担民事赔偿责任;关联交易合同存在无效或者可撤销情形,符合条件的股东通过股东代表诉讼向关联交易合同相对方主张权利的,应当依法予以支持。
11. Defining the civil liability in accordance with the law for investor suitability management to which securities companies are subject and implementing the requirements for suitability of investors on the STAR Market. The system design of the obligation to manage investor suitability is to prevent investors from sustaining loss as a result of purchasing financial products that mismatch their risk tolerance. The characteristics such as uncertain profitability of science and technology innovation enterprises and stricter delisting conditions define the certain risk the STAR Market itself carries. At the core of the judicial examination standards as to whether a securities company fully performs its obligation to manage investor suitability is whether the securities company performs its obligation of notification and explanation towards investors, according to the objective standards of understandability to ordinary people and the subjective standards of understandability to investors, before providing investors with stock brokerage services on the STAR Market. If any investor sustains loss arising from failure to perform the obligation to examine investor suitability or disclose information and risk, the people's court shall order the securities company to assume the liability for compensation.   11、依法界定证券公司投资者适当性管理民事责任,落实科创板投资者适当性要求。投资者适当性管理义务的制度设计,是为了防止投资者购买与自身风险承受能力不相匹配的金融产品而遭受损失。科技创新企业盈利能力具有不确定性、退市条件更为严格等特点,决定了科创板本身有一定风险。对于证券公司是否充分履行投资者适当管理义务的司法审查标准,核心是证券公司在为投资者提供科创板股票经纪服务前,是否按照一般人能够理解的客观标准和投资者能够理解的主观标准向投资者履行了告知说明义务。对于因未履行投资者适当性审查、信息披露及风险揭示义务给投资者造成的损失,人民法院应当判令证券公司承担赔偿责任。
12. Trying disputes over shares-related margin loan contracts in accordance with the law and clarifying civil liability for margin trading in violation of the rules. As an important trading method on the securities market and an important business of broker-dealers, margin trading is state-conceded financial business in accordance with the law. Any shares-related margin loan contract between an Internet margin loan platform, private margin loan company, or any other incorporated institution without concessions and an investor shall be determined null and void. For disguised brokerage business conducted by a margin loan company or a trading software operator by using trading software, the contract shall also be determined null and void.   12、依法审理股票配资合同纠纷,明确股票违规信用交易的民事责任。股票信用交易作为证券市场的重要交易方式和证券经营机构的重要业务,依法属于国家特许经营的金融业务。对于未取得特许经营许可的互联网配资平台、民间配资公司等法人机构与投资者签订的股票配资合同,应当认定合同无效。对于配资公司或交易软件运营商利用交易软件实施的变相经纪业务,亦应认定合同无效。
IV. Effectively protecting the lawful rights and interests of investors and establishing and improving a securities civil litigation system commensurate with the registration system reform. 四、有效保护投资者合法权益,建立健全与注册制改革相适应的证券民事诉讼制度
13. Promoting the improvement of the securities civil litigation systems and mechanisms in line with China's national conditions and reducing the litigation costs of investors. In accordance with the legislative process and the reform spirit, the securities civil litigation systems and mechanisms in line with China's national conditions shall be fully cooperated in and improved. Based on effective and adequate use of the current representative litigation system, if there are a large number of investors in joint litigation, the parties may elect a representative, or if the securities investor protection institution established by the securities regulatory authority under the State Council sues in its own name, or as authorized by investors, assigns its employee or authorizes an attorney, to participate in the trial of a case, the people's court may designate the institution or the party it represents as a representative. Securities investor protection institutions established in accordance with the law shall be supported in providing investors with specialist legal services and the like to support securities-related litigation. Appropriate plaintiffs shall be classified according to common legal issues, common factual issues, and other standards, and on that basis, litigation announcements, rights registration and representative election shall be advanced by classifications. A representative shall, with the special authorization of the plaintiff he or she represents, have litigant rights such as change or waiver of claims, and for a settlement or mediation agreement signed between a representative and defendant, the people's court shall conduct examination in accordance with the law so as to protect the lawful rights and interests of the represented investors. The establishment of a mechanism for investor protection institutions to participate as ancillaries in the enforcement of effective judgments shall be explored, and drawing on the practice of advance compensation, courts shall deposit a sum of money for enforcement with an investor protection institution, so that the investor protection institution may conduct allocation among prevailing investors through the securities trading settlement system. In active cooperation with relevant authorities and relevant parties, a mechanism to connect and cooperate in work of using administrative fines and criminal fines first for civil compensation shall be explored. The establishment of a public-interest securities-related civil and administrative litigation system shall be researched and explored.   13、推动完善符合我国国情的证券民事诉讼体制机制,降低投资者诉讼成本。根据立法进程和改革精神,全力配合和完善符合我国国情的证券民事诉讼体制、机制。立足于用好、用足现行代表人诉讼制度,对于共同诉讼的投资者原告人数众多的,可以由当事人推选代表人,国务院证券监督管理机构设立的证券投资者保护机构以自己的名义提起诉讼,或者接受投资者的委托指派工作人员或委托诉讼代理人参与案件审理活动的,人民法院可以指定该机构或者其代理的当事人作为代表人。支持依法成立的证券投资者保护机构开展为投资者提供专门法律服务等证券支持诉讼工作。按照共同的法律问题或者共同的事实问题等标准划分适格原告群体,并在此基础上分类推进诉讼公告、权利登记和代表人推选。代表人应当经所代表原告的特别授权,具有变更或者放弃诉讼请求等诉讼权利,对代表人与被告签订的和解或者调解协议,人民法院应当依法进行审查,以保护被代表投资者的合法权益。推动建立投资者保护机构辅助参与生效判决执行的机制,借鉴先行赔付的做法,法院将执行款项交由投资者保护机构提存,再由投资者保护机构通过证券交易结算系统向胜诉投资者进行二次分配。积极配合相关部门和有关方面,探索行政罚款、刑事罚金优先用于民事赔偿的工作衔接和配合机制。研究探索建立证券民事、行政公益诉讼制度。
14. Strengthening the design of supporting procedure and improving the capability of investors to present evidence. In securities-related tort cases, investors tend be in a weak position in obtaining and controlling key evidence. The establishment of a system of wit of investigation for lawyers in civil litigation shall be explored, so as to facilitate investors' attorneys in exercising the relevant right of investigation and improve the capability of investors to collect evidence on their own. The appropriate strengthening of the obligation of relevant informed entities and individuals to assist investors in obtaining evidence shall be researched and explored, and civil punishment shall be imposed on obligated entities and individuals that refuse to perform their obligations to assist in obtaining evidence.   14、加强配套程序设计,提高投资者举证能力。证券侵权案件中,投资者在取得和控制关键证据方面往往处于弱势地位。探索建立律师民事诉讼调查令制度,便利投资者代理律师行使相关调查权,提高投资者自行收集证据的能力。研究探索适当强化有关知情单位和个人对投资者获取证据的协助义务,对拒不履行协助取证义务的单位和个人要依法予以民事制裁。
15. Vigorously innovating securities-related adjudicative mechanisms and improving securities-related judicial capacity by means of information technology. The establishment of an open, dynamic and transparent expert assessor system for securities-related tort cases shall be promoted, and expert assessors shall be selected from securities regulatory institutions, securities market businesses, research institutions and other entities to participate in the trial of securities-related tort cases. The role of expert witnesses in the trial of cases shall be maximized, and measures for the determination and administration of the qualifications of expert witnesses shall be explored. The development and construction of a national court securities-related adjudicative work information platform shall be researched, so as to achieve online paperless docketing of securities cases by means of information technology, effect the facilitation of case docketing for mass litigation, improve the unified registration mechanism of group litigation in reliance on the information platform, and solve registration of the rights of appropriate plaintiffs, election of representatives, and other issues. Efforts shall be made to solve the issue of connection between the trial of cases and data on securities trading, so as to provide support for the calculation of the amount of compensation for loss and improve the efficiency of case handling.   15、大力开展证券审判机制创新,依托信息化手段提高证券司法能力。推动建立开放、动态、透明的证券侵权案件专家陪审制度,从证券监管机构、证券市场经营主体、研究机构等单位遴选专家陪审员,参与证券侵权案件审理。要充分发挥专家证人在案件审理中的作用,探索专家证人的资格认定和管理办法。研究开发建设全国法院证券审判工作信息平台,通过信息化手段实现证券案件网上无纸化立案,实现群体性诉讼立案便利化,依托信息平台完善群体诉讼统一登记机制,解决适格原告权利登记、代表人推选等问题。着力解决案件审理与证券交易数据的对接问题,为损失赔偿数额计算提供支持,提高办案效率。
16. Comprehensively furthering the diversified resolution of securities and futures disputes and promoting the securities-related model judgment mechanism. The first choice of the extrajudicial dispute resolution mechanism shall be adhered to, the Opinions on Comprehensively Advancing Establishment of Diversified Resolution Mechanism of Securities and Futures Disputes shall be implemented, the resources of all parties in the market shall be relied on, professional resources in the market shall be fully mobilized to resolve conflicts and disputes, and the establishment of a dispute resolution and compensation relief mechanism between issuers and investors shall be promoted. If a mass dispute over civil compensations arising from illegal conduct such as false statements, insider trading, and market manipulation requires the people's court to declare legal rules and harmonize the application of law through judicial judgments, the people's court accepting the case may choose cases representative in terms of fact finding and application of law as model cases to try in the first instance and enter judgments in a timely manner, so as to guide other parties in solving disputes through the diversified resolution mechanism of securities and futures disputes and increase the efforts to resolve conflicts and disputes relating to the STAR Market, especially mass cases.   16、全面推动证券期货纠纷多元化解工作,推广证券示范判决机制。坚持把非诉讼纠纷解决机制挺在前面,落实《关于全面推进证券期货纠纷多元化解机制建设的意见》,依靠市场各方力量,充分调动市场专业资源化解矛盾纠纷,推动建立发行人与投资者之间的纠纷化解和赔偿救济机制。对虚假陈述、内幕交易、操纵市场等违法行为引发的民事赔偿群体性纠纷,需要人民法院通过司法判决宣示法律规则、统一法律适用的,受诉人民法院可选取在事实认定、法律适用上具有代表性的案件作为示范案件,先行审理并及时作出判决,引导其他当事人通过证券期货纠纷多元化解机制解决纠纷,加大对涉科创板矛盾纠纷特别是群体性案件的化解力度。
17. Strengthening the construction of professional financial adjudicative institutions and raising the professional level of the securities adjudicative team. According to the spread of financial institutions and the quantity of financial cases, the establishment of financial courts in regions where financial cases are relatively concentrated shall be explored so as to exercise centralized jurisdiction over securities-related tort cases. People's courts with relatively many financial cases may set up professional financial adjudicative collegial panels. In active compliance with the new requirements of the structural reform of the financial supply side and the prevention and control of financial risk for the work of people's courts, on the basis of conscientiously summarizing adjudicative experience, the analysis and judgment of STAR Market-related cases and the acquisition of expertise shall be strengthened, thematic training on securities adjudication shall be provided in a targeted manner, and the adjudicative team of people's courts at all levels shall be further reinforced, so as to strive to build a securities adjudicative team of high political quality and proven business capabilities.   17、加强专业金融审判机构建设,提升证券审判队伍专业化水平。根据金融机构分布和金融案件数量情况,在金融案件相对集中的地区探索设立金融法庭,对证券侵权案件实行集中管辖。其他金融案件较多的人民法院,可以设立专业化的金融审判合议庭。积极适应金融供给侧结构性改革和金融风险防控对人民法院工作的新要求,在认真总结审判经验的基础上,加强对涉科创板案件的分析研判和专业知识储备,有针对性地开展证券审判专题培训,进一步充实各级人民法院的审判力量,努力建设一支政治素质高、业务能力强的过硬证券审判队伍。
     
     
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