On the Duty Standard of Securities Lawyer's Diligence and Responsibility‐Take the Xintai Electric Case as an Example

Yu Sun

《Frontiers in Humanities and Social Sciences》 1卷5期 (2021/08) Pp. 176-185

https://doi.org/10.29561/FHSS.202108_1(5).0025

摘要

This paper takes the case of Xintai Electric's IPO lawyer and law firm against China Securities Regulatory Commission as a sample to analyze the identification standard of securities lawyers' diligence and responsibility obligations. From 1993 to 2019, China's securities laws were constantly improved, related securities regulatory agencies were also constantly improved and developed, and the administrative penalties made by them also showed an increasingly judicatory trend. Therefore, the determination of the standards of the obligations of the securities lawyers is becoming more and more clear and clear. But there are still many problems in practice. This paper mainly focuses on the determination of the judgment standard of the securities lawyers' diligence and duty, summarizes the causes and development of the case of Xintai Electric IPO lawyers and law firms against the CSRC, makes horizontal comparison of similar cases, vertically examines the evolution of legislation and judgment at home and abroad, and puts forward several opinions on the improvement of relevant laws in China.

關鍵字

Securities Lawyer ； Diligence and Duty ； Financial Report ； The Administrative Punishment

參考文獻

See Evan A. Davis, Regulating The Lawyer: Past Efforts and Future Possibilities: The Meaning of Professional Independence, 103Colum. L.rev. 1281,1288 (2003).

see http://www.gov.cn/xinwen/2017-10/14/content_5231694.htm, visit on May 20, 2019.

our country "securities law" the two hundred and twenty-third regulation: the securities service organ not diligently, documents issued by the manufacture, with false records, misleading statements or major omissions, and shall be ordered to correct, confiscate the business income, suspended or revoked securities service business license, and impose a business income of less than one time but not more than five times the fine. The directly responsible persons in charge and other directly responsible persons shall be given a warning, their securities practice qualifications shall be revoked, and a fine of between 30,000 yuan and 100,000 yuan shall be imposed.

Lihang Geng, "Law Transplantation and Regulation: The Role of Lawyers in the Securities Market", doctoral dissertation, China University of Political Science and Law, 2004, p. 151.

Article 98 of the Guidelines on the Articles of Association of Listed Companies stipulates that directors shall abide by the laws, administrative regulations and the articles of Association and bear the following duties of care to the company: (1) The company shall exercise the rights granted by the Company with care, seriousness and diligence to ensure that the company's commercial activities comply with the requirements of national laws, administrative regulations and national economic policies and that its commercial activities do not exceed the business scope stipulated in the business license; (2) It shall treat all shareholders fairly; (3) To keep abreast of the company's business operation and management; (4) Written confirmation opinions shall be signed on the company's periodic report. Ensure that the information disclosed by the company is true, accurate and complete; (5) The relevant information and materials shall be truthfully provided to the board of supervisors and shall not hinder the board of supervisors or the supervisors from exercising their functions and powers; (6) other duties of care prescribed by laws, administrative regulations, departmental rules and the articles of Association. Article 81 of the newly revised "Governance Code for Listed Companies" stipulates that securities companies, law firms, accounting firms and other intermediaries shall actively pay attention to the governance of listed companies to promote the formation of good governance practices when providing professional services such as sponsorship and underwriting, financial advisory, legal and audit services to listed companies. Listed companies choose the intermediary agencies that provide services for them prudently, and pay attention to the honesty, trustworthiness, diligence and responsibility of the intermediary agencies.