| The Supreme People's Court Issues Top 10 Model Cases Involving Diversified Resolution of Securities and Futures Disputes | | 最高人民法院发布证券期货纠纷多元化解十大典型案例 |
| (December 1, 2018) | | （2018年12月1日） |
| Table of Cases | | 案例目录 |
| I. Case concerning mass disputes resulting from fraudulent issuance by listed company | | 一、上市公司欺诈发行引发涉众纠纷案例 |
| II. Case concerning dispute over control of listed company | | 二、上市公司控制权之争纠纷案例 |
| III. Case concerning dispute between investors and listed company over compensation for misrepresentation (1) | | 三、投资者与上市公司虚假陈述赔偿纠纷案例（一） |
| IV. Case concerning dispute between investors and listed company over compensation for misrepresentation (2) | | 四、投资者与上市公司虚假陈述赔偿纠纷案例（二） |
| V. Case concerning futures trading dispute between investor and futures company and its business department | | 五、投资者与期货公司及其营业部期货交易纠纷案例 |
| VI. Case concerning dispute between investor and futures company caused by trading system failure | | 六、投资者与期货公司交易系统故障纠纷案例 |
| VII. Case concerning resolution of wealth management product dispute between investor and securities company by notarized deposit | | 七、公证提存化解投资者与证券公司理财产品业务纠纷案例 |
| VIII. Case concerning commission adjustment dispute between investor and securities business department | | 八、投资者与证券营业部佣金调整纠纷案例 |
| IX. First case concerning dispute to which the small claim fast-track mechanism is applied | | 九、首例适用小额速调机制纠纷案例 |
| X. Case concerning successive default disputes in bonds trading by fund's asset management product | | 十、基金资管产品债券交易连环违约纠纷案例 |
| I. | | 一、 |
| Case concerning mass disputes resulting from fraudulent issuance by listed company | | 上市公司欺诈发行引发涉众纠纷案例 |
| Entities involved: the Higher People's Court of Fujian Province, the Higher People's Court of Liaoning Province, the Fuzhou City Intermediate People's Court, the Shenyang City Intermediate People's Court, the Securities Association of China, the Shenzhen Stock Exchange, the China Securities Investor Protection Fund Corporation Limited, and the China Securities Depository and Clearing Corporation Limited | | 参与单位：福建省高级人民法院、辽宁省高级人民法院、福州市中级人民法院、沈阳市中级人民法院、中国证券业协会、深圳证券交易所、中国证券投资者保护基金有限责任公司、中国证券登记结算有限责任公司 |
| 1. Facts | | 一、案情介绍 |
| In May 2016, X Co., Ltd., a company listed on the ChiNext, received an Advance Notice of Administrative Punishment and Prohibition from Access to Market from the China Securities Regulatory Commission (“CSRC”), because the relevant financial data in its IPO application documents contained false records, and its periodic reports disclosed after its flotation contained false records and material omissions. In August 2017, X Co., Ltd. was delisted, making it the first company to delist from the ChiNext and from China's capital market on account of fraud. Many investors sustained losses due to the delisting of X Co., Ltd. A failure to cause them to be compensated according to the law would give rise to a number of suits for claims and complaints, affecting the smooth progress of the delisting and the stability of the capital market. | | 2016年5月，创业板上市公司X股份有限公司由于IPO申请文件中相关财务数据存在虚假记载、上市后披露的定期报告中存在虚假记载和重大遗漏，收到中国证监会《行政处罚和市场禁入事先告知书》。2017年8月，X公司正式摘牌退市。其为创业板第一家退市的公司，也是中国资本市场第一家因欺诈发行而退市的公司。众多投资者因X公司退市出现损失，如不能依法获得赔偿将引发涉众纠纷，出现大量索赔诉讼和投诉，影响退市工作顺利进行和资本市场稳定。 |
| In order to resolve the mass disputes between the person responsible for the fraudulent issuance and investors, XY Securities Joint Stock Company (hereinafter referred to as the “XY Securities”), the sponsor of X Co., Ltd., decided to establish the “Special Fund for Advance Payment with respect to Fraudulent Issuance by X Co., Ltd.,” worth CNY550 million, to compensate qualified investors for the investment losses they sustained. The Securities Association of China teamed up with the China Securities Investor Protection Fund Corporation Limited, the Shenzhen Stock Exchange, the China Securities Depository and Clearing Corporation Limited and the XY Securities to form a coordinating group promoting the advance compensation of Investors of X Co., Ltd. to advance the development and improvement of the advance compensation proposal and the implementation of various work. The XY Securities organized expert seminars and investor symposiums, requested extensively opinions from investors, regulatory authorities, member entities of the coordinating group, legal experts and financial engineering experts as well as a guiding opinion from the Supreme People's Court, and comprehensively demonstrated the advance compensation proposal. | | 为了化解欺诈发行责任人与投资者的群体性纠纷，作为X公司上市保荐机构的XY证券股份有限公司（以下简称“XY证券”），决定出资设立规模为5.5亿元人民币的“X公司欺诈发行先行赔付专项基金”，用于赔付适格投资者遭受的投资损失。中国证券业协会与中国证券投资者保护基金有限责任公司、深圳证券交易所、中国证券登记结算有限责任公司、XY证券共同组成X公司投资者先行赔付工作协调小组，推进先行赔付方案的制定完善和各项工作的实施。XY证券先后组织多场专家论证会、投资者座谈会，广泛听取投资者、监管部门、协调小组成员单位、法律专家和金融工程专家意见，并征求了最高人民法院的指导意见，对先行赔付方案进行了全面论证。 |
| Starting from June 2017, after two stages of compensation declaration processes, by October 2017, the funds with respect to the compensation declaration at the second stage had been transferred, and the qualified investors who had accepted the compensation and reached an effective settlement with the XY Securities had amounted to 11,727, accounting for 95.16% of the total. The actual compensation made was CNY241,981,273, accounting for 99.46% of the total compensation payable. The advance compensation proposal in this case was also recognized by the court. The applications of law by the Higher People's Court of Fujian Province, the Higher People's Court of Liaoning Province, the Intermediate People's Court of Fuzhou City, and the Intermediate People's Court of Shenyang City when trying claim cases against the XY Securities involving fraudulent issuance by the X Co., Ltd. were consistent with the advance compensation proposal. | | 从2017年6月开始，经过两个阶段的赔付申报过程，至2017年10月完成第二次赔付申报的资金划转，接受赔付并与XY证券达成有效和解的适格投资者共计11，727人，占适格投资者总人数的95.16%；实际赔付金额为241，981，273 元，占应赔付总金额的99.46%。本案先行赔付方案也得到了法院的认可，福建省高级人民法院、辽宁省高级人民法院、福州市中级人民法院、沈阳市中级人民法院等在审理XY证券因X公司欺诈发行涉及索赔案件时，法律适用与先行赔付方案保持一致。 |
| 2. Significance | | 二、典型意义 |
| The advance compensation of investors of X Co., Ltd. was the first attempt in China's capital market which a sponsor institution made to compensate investors in advance for their losses because the listed company delisted as a result of its fraudulent issuance and was of great significance for advancing the pilot program of the diversified resolution mechanism of securities and futures disputes. With the support of the judiciary and the regulatory authorities, thanks to the joint efforts of the member entities of the coordinating group promoting the advance compensation and securities companies, the advance compensation work progressed smoothly, and the conflicts and disputes between the operator and the issuer and numerous investors were resolved through active settlement, which boosted the smooth delisting of X Co., Ltd., prompted the relevant responsible entities in learning lessons, regulated business management, raised compliance awareness and risk control level, prevented the first-ever delisting of a listed company as a result of fraudulent issuance from causing social conflicts, and maintained the harmony and stability of the capital market and society. | | X公司投资者先行赔付是我国资本市场因上市公司欺诈发行退市，保荐机构先行赔付投资者损失的首次尝试，对推进证券期货纠纷多元化解机制试点工作有重要意义。在法院系统和监管部门的支持下，在先行赔付工作协调小组成员单位和广大证券公司的共同努力下，此次先行赔付工作进展顺利，通过主动和解的方式化解了经营机构及发行主体与众多投资者之间的矛盾纠纷，促进了X公司的平稳退市，促使相关责任主体吸取教训，规范经营管理，提升合规意识和风控水平，没有因第一单上市公司欺诈发行退市引发社会矛盾，维护了资本市场和社会的和谐稳定。 |
| II. | | 二、 |
| Case concerning dispute over control of listed company | | 上市公司控制权之争纠纷案例 |
| Entities involved: the Shenzhen Office of the CSRC, the Shenzhen Securities and Futures Dispute Resolution Center, and the Shenzhen Court of International Arbitration | | 参与单位：深圳证监局、深圳证券期货业纠纷调解中心、深圳国际仲裁院 |
| 1. Facts | | 一、案情介绍 |
| C Company and W Company were listed on the Shanghai and Shenzhen Stock Exchanges in 2002 and 2007 respectively. The actual controllers of C Company and W Company had a control dispute arising from the issues such as the corporate governance structure, business development planning and major project investment of C Company, which received widespread attention. Attributed to the active promotion of the Shenzhen Office of the CSRC, the Shenzhen Securities and Futures Dispute Resolution Center (hereinafter referred to as the “Resolution Center”) accepted the case involving the dispute over the control of C Company in December 2017. | | C公司和W公司分别于2002年、2007年在沪深交易所上市。C公司与W公司实际控制人围绕C公司法人治理结构、经营发展规划和重大项目投资等问题引发控制权之争，引起各方广泛关注。在深圳证监局的积极推动下，深圳证券期货业纠纷调解中心（以下简称“调解中心”）2017年12月正式受理C公司控制权之争案。 |
| As the case involved complex issues and material interests and received much publicity, it would affect the stability of the capital market and society if it was handled improperly. The Mediation Center specially formulated the Special Guidelines for Mediation Procedures for Corporate Control Disputes upon acceptance of the case. As elected by the parties and designated by the Resolution Center, three senior legal experts and industry experts in the capital market composed a mediation working group. The members of the mediation working group gave full play to professionalism dedication, carefully verified and repeatedly demonstrated the financial, legal and other professional issues involved in the transfer of the shares in the listed companies, mediated in terms of rules, morality and interests on the basis of the principle of voluntariness of parties, from the perspective of preventing and resolving capital market risks and protecting the rights and interests of listed companies, shareholders and investors, spoke to them with reason, acted with emotion and guided them with benefit, and convened four face-to-face mediation meetings and several “back-to-back” meetings, so as to advance the continual refinement of the specific proposal to resolve the control dispute. In January 2018, through the resolutions of the boards of directors of both parties, C Company and W Company executed a settlement agreement with the Shenzhen Office of the CSRC and the Resolution Center acting as witnesses. According to the announcement of the listed company, C Company agreed to transferring 75% of the shares of one of its subsidiaries to W Company, and W Company agreed to transferring its 74 million unlimited circulating shares held by C Company at a premium to a third party company by means of agreement transfer. In March 2018, the Shenzhen Court of International Arbitration formed a sole arbitrator tribunal at the application of both parties and quickly rendered an arbitral award in accordance with the settlement agreement. | | 针对该案涉及问题复杂、利益巨大、舆情关注度高，若处理不当会影响资本市场和社会稳定的特点，调解中心受案之初专门制订了《公司控制权纠纷调解程序特别指引》。经双方当事人选定和调解中心指定，由3名资本市场资深法律专家、行业专家组成调解工作小组。调解工作小组成员充分发挥专业敬业精神，认真核实、反复论证上市公司股权转让涉及的财务、法律等专业问题，本着当事人自愿的原则，从防范化解资本市场风险、上市公司、股东和投资者权益保护的角度，晓之以理，动之以情，导之以利，前后召开四次面对面调解会议，组织数场“背对背”会谈，推进控制权之争化解的具体方案不断细化。2018年1月，经由双方董事会决议，C公司和W公司在深圳证监局、调解中心等的见证下，正式签署和解协议。据上市公司公告披露，C公司同意向W公司转让其旗下某子公司75%的股权，W公司同意以协议转让的方式向第三方公司溢价转让其持有的C公司无限售流通股7400万股。2018年3月，深圳国际仲裁院根据双方申请，组成独任仲裁庭，依照和解协议内容快速作出仲裁裁决。 |
| 2. Significance | | 二、典型意义 |
| First, the resolution of the control dispute through mediation in the case presented a new method that could be used for reference in the handling of the same kinds of disputes in the future. In May 2018, on the basis of summarizing the successful mediation experience in this case, the Resolution Center and the Shenzhen Court of International Arbitration jointly established the first “Mergers and Acquisitions Dispute Resolution Center” in the domestic capital market to strengthen the research, prevention and resolution in mergers and acquisitions disputes among listed companies and other aspects. Second, that the Shenzhen Office of the CSRC, the Resolution Center, and the Shenzhen Court of International Arbitration worked together to resolve the dispute over the control of a listed company that had existed for four years in a short period of time fully showed the advantages and effects of the dispute resolution mechanism consolidating “professional mediation, commercial arbitration, industry self-regulation and administrative regulation” in resolving complex contradictions and disputes in the capital market. Third, a win-win situation was achieved for both parties after the dispute was resolved by mediation. C Company optimized its ownership structure, debt structure and industry structure and embraced a good business environment. W Company was more focused on the development of its principal business by transferring relevant shares and promising to give up control. | | 一是本案通过调解方式化解控制权之争为今后同类纠纷处理探索了一条可资借鉴的新路径。2018年5月，在总结本案调解成功经验的基础上，调解中心和深圳国际仲裁院合作成立境内资本市场首家“并购争议解决中心”，以加强上市公司并购纠纷等方面的研究、防范和化解。二是深圳证监局、调解中心、深圳国际仲裁院通力协作，短时间内解决长达4年的上市公司控制权争夺纠纷，充分体现了“专业调解＋商事仲裁＋行业自律＋行政监管”四位一体争议解决机制在化解资本市场复杂矛盾纠纷方面的优势和成效。三是通过调解化解纠纷后，双方实现了共赢。C公司优化了股权结构、负债结构和产业结构，赢得了良好的经营环境，W公司转让相关股份、承诺放弃控制权争夺，更加专注主业发展。 |
| III. | | 三、 |
| Case concerning dispute between investors and listed company over compensation for misrepresentation (1) | | 投资者与上市公司虚假陈述赔偿纠纷案例（一） |
| Entities involved: Shanghai No. 1 Intermediate People's Court , the Shanghai Office of the CSRC, and the China Securities Investor Services Center | | 参与单位：上海市第一中级人民法院、上海证监局、中证中小投资者服务中心有限责任公司 |
| 1. Facts | | 一、案情介绍 |
| C Company, a listed company, was subject to administrative punishment by the CSRC as a result of concealing material related-party transactions in its disclosed annual report and committing a tort of misrepresentation. According to Some Provisions of the Supreme People's Court on Trying Cases of Civil Compensation Arising from False Statement in Securities Market, if an investor purchased C Company securities during the period between the date of commission of misrepresentation by C Company and the date of misrepresentation being exposed and sustained losses for the sale of the securities, or continual holding of the securities, after the date when the misrepresentation was exposed or compensated, the investor might claim against C Company. More than 100 investors sued in Shanghai No. 1 Intermediate People's Court on the grounds that C Company committed a tort of securities misrepresentation, requiring the company to compensate them for the losses caused by the fall in stock prices. After the case was docketed, the court entrust the case to the China Securities Investor Services Center for mediation. | | C上市公司因披露的公司年报隐瞒重大关联交易，构成虚假陈述侵权行为，受到证监会行政处罚。根据最高人民法院《关于审理证券市场因虚假陈述引发的民事赔偿案件的若干规定》，投资者在C公司虚假陈述行为实施日至揭露日之间购买C公司证券，在虚假陈述行为揭露日或更正日及以后，因卖出该证券发生亏损，或者因持续持有该证券而产生亏损的，可以向C公司索赔。此后100多名投资者以C公司构成证券虚假陈述侵权行为为由向上海市一中院提起诉讼，要求公司赔偿股价下跌给投资者造成的损失。法院立案后将案件委托给中证中小投资者服务中心进行调解。 |
| Under the guidance and coordination of the Shanghai Office of the CSRC, the mediators conducted an in-depth research on the facts of the case and communicate in detail with the parties. The mediators believed that the issue in this case was the measure of the loss caused by the tort of misrepresentation and the deduction of systemic risk. The rules in forces were silent on the specific measure of losses, but in the real world, the average purchase price of related stocks was calculated by first-in, first-out, weighted average, weighted moving average, and other means. The mediators collected and reorganized judicial precedents and practice data, summed up and compared the advantages and disadvantages of various calculation methods, and examined the method each party desired to adopt. The mediators also measured the proportion of deduction of systemic risk factors in the case by reference to the methods to calculate system risk proportions in the cases such as “Foshan Lighting Case” and “Wan Fusheng Case.” As the investors were unfamiliar with the legal relationship with respect to misrepresentation, the mediators patiently explained the relevant regulations and judicial precedents, enabled the investors to fully recognize the risks of investment on the stock market and the systemic risks of the stock market, and reminded investors that they should have reasonable expectations for the compensation, given the time and energy-consuming resolution of the dispute by litigation, took into account the company's solvency and development needs. Based on the foregoing work, the mediators put forward a mediation proposal. In the end, more than 100 investors and C Company executed a mediation agreement, and both parties was satisfied with the mediation results. | | 在上海证监局的指导协调下，调解员对案情进行了深入研究，与双方当事人进行了细致沟通。调解员认为，本案争议点集中在虚假陈述侵权行为造成损失的计算方法和系统性风险的扣除上。现行规定没有对损失具体计算方法进行明确，实践中在计算相关股票的买入均价时，有先进先出法、加权平均法、移动加权平均法等方式，调解员通过搜集整理司法判例与实务资料，对各种计算方法的优劣进行归纳比较，对双方当事人各自坚持采用的方法进行一一核算；同时，以“佛山照明案”、“万福生科案”等案例中系统风险比例的计算方法为参考，对本案中系统性风险因素的扣除比例进行了测算。由于投资者对虚假陈述行为法律关系较为陌生，调解员耐心解释相关法规和判例情况，使投资者充分认识到股市投资行为本身的风险和股票市场的系统风险，提醒投资者充分权衡通过诉讼方式解决纠纷的较高时间和精力成本，并综合考虑C公司的偿债能力和发展需要，形成对所获赔偿的合理期望值。在上述工作基础上，调解员提出了调解方案。最终，100多名投资者和C公司正式签署调解协议，双方对调解结果均表示满意。 |
| 2. Significance | | 二、典型意义 |
| The successful mediation in this case plays a positive role as a model in the resolving misrepresentation disputes with listed companies. First, easily and efficiently resolving conflicts: Misrepresentation disputes concern many investors, affect a large region, and have a great social impact. If improperly handled, they will easily cause adverse effects such as fluctuations in the stock price of listed companies and affect the companies' development and the vital interests of investors. Previously, such disputes were all resolved by litigation, but as the evidence was difficult to adduce and the litigation was prolonged, both parties had to input much in terms of time and financial resources. Professional mediation is conducive to achieving the balance between investors' remedies on the one hand and the maintenance of market stability and the development of the companies on the other hand and to bringing about a win-win situation in which each party is satisfied at the end of the cases. Second, effectively saving judicial resources: after the case was handled, a number of courts and relevant mediation organizations have established a litigation and mediation docking mechanism and entrusted and assigned a number of dispute cases to mediation organizations. Such practices are conducive to rapid settlement of disputes, greatly conserving judicial resources and helping investors lower the cost to defend their rights. | | 此案的成功调解，对于上市公司虚假陈述纠纷化解具有积极示范作用。一是便捷高效化解矛盾。虚假陈述纠纷涉及投资者多、地域分布广、社会影响大，若处置不当极易引起上市公司股价波动等不良效应，影响公司发展和投资者切身利益。此前该类纠纷都以诉讼方式解决，但举证较难、诉讼周期长，双方耗时耗力。通过专业调解，有助于实现投资者权益救济和维护市场稳定、公司发展之间的平衡，实现“案结事了人和”的多赢局面。二是有效节约司法资源。此案之后，陆续有多家法院和相关调解组织建立诉调对接机制，委托、委派多起纠纷案件给调解组织受理，有利于快速定纷止争，极大节约了司法资源，帮助投资者低成本维权。 |
| IV. | | 四、 |
| Case concerning dispute between investors and listed company over compensation for misrepresentation (2) | | 投资者与上市公司虚假陈述赔偿纠纷案例（二） |
| Entities involved: the Nanjing Intermediate People's Court, the Jiangsu Office of the CSRC, and the China Securities Investor Services Center | | 参与单位：南京市中级人民法院、江苏证监局、中证中小投资者服务中心有限责任公司 |
| 1. Facts | | 一、案情介绍 |
In November 2015, the CSRC filed a case to investigate the listed H Company (hereinafter referred to as the “H Company”) and issued the Advance Notice of Administrative Punishment and Prohibition from Access to Market , determining that the company committed the failure to disclose information as required and misleading statement as specified in Article 193 of the Securities Law and proposing to impose administrative punishment on it. In April 2017, more than one investor sued in the Nanjing Intermediate People's Court (hereinafter referred to as the “Nanjing Court”) on the grounds that H Company committed the illegal act of misrepresentation, requiring H Company to make compensation for their investment losses. The Nanjing Court accepted the case and entrusted the China Securities Investor Services Center (hereinafter referred to as the “Investor Service Center”) with mediation.
．．．．．． | | 2015年11月，证监会对H上市公司（以下简称“H公司”）立案调查，并下发《行政处罚及市场禁入事先告知书》，认定该公司构成《证券法》第193条规定的未按照规定披露信息和误导性陈述行为，拟对其进行行政处罚。2017年4月，多名投资者以H公司构成虚假陈述违法行为为由，向南京市中级人民法院（以下简称“南京中院”）提起诉讼，要求H公司赔偿其投资损失。南京中院受理了该批案件，并委托中证中小投资者服务中心（以下简称“投资者服务中心”）进行调解。
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