As we all know, the securities market is the product of the combination of credit and the high development of market economy, and public credit is the pillar of the development of the securities market. How to ensure and promote investors' confidence and trust in the securities market is the responsibility of governments all over the world, and it is also a major problem on the way forward. At present, in China's securities market, due to imperfect supervision, insider trading, accounting information fraud and other illegal acts that seriously harm the interests of investors exist in large numbers. Maintaining market credit and managing the securities market according to law has become a top priority.
First, the identification of accounting information fraud
The definition of fraud in civil law is: in civil acts, one party deliberately conceals the true situation or deliberately tells the other party the false situation, so that the other party makes an untrue expression of intention. Thus, an act must meet the following conditions to constitute fraud: (1) Subjective intention. That is, people who commit fraud have their specific purposes and motives, such as profiteering and illegal fund-raising.
Grade, not due to negligence, overconfidence and other faults. (2) Fraud is intentional objectively, that is, deliberately concealing the real situation from the other party or deliberately fabricating false facts. (3) In the case of being deceived, the other party made a choice against his true will. (4) The other party is unaware of fraud.
The so-called accounting information fraud is to use the accounting information and forecast analysis provided by accounting statements and interim reports to deliberately conceal the real situation related to investment or deliberately inform investors of false information, so that investors can make untrue investment decisions.
At present, the ways of using accounting information for fraud in China's securities market mainly include:
Inflated profits. "Hong Guang Industry" is a typical example of turning losses into profits and fraudulent listing. 1one year after listing in may 1997, the company suffered huge losses, with net profit of1984,000 yuan and earnings per share of 0.863 yuan.
(2) inflated assets. Blue sky simply forged the approval document for listing land, inflated bank deposits and reduced its share capital.
(3) inflated registered capital. In order to achieve the purpose of listing, some companies deliberately inflated their registered capital and withdrew it after listing.
(4) Failure to fulfill the obligation of information disclosure. The parent companies of some listed companies borrow money for the group with the assets of listed companies as collateral, gradually hollowing out listed companies.
(5) Take advantage of accounting standards to manipulate profits. Some listed companies use the imperfection of accounting standards to manipulate profits through debt restructuring, capital restructuring and asset restructuring, and suddenly turn losses into profits.
The above methods are the main means of accounting information fraud in China's securities market. In addition, there are many acts of making false accounts. Here, we need to pay attention to the misleading statements of future facts (such as profits) in financial statements. Whether a promise or a false test is fraud is not clearly stipulated in our laws. For the prediction and analysis of future events, it is not ruled out that subjective judgment will deviate from the future results, but the report analysis is provided by some professionals who have profound professional knowledge as theoretical guidance and a profound realistic understanding of the company's operation and development. Under normal circumstances, there should be no misleading statements, promises or calculation errors. Therefore, unless there is reason to believe that the deviation between the prediction and analysis results is inevitable, we have reason to think that this is fraud, that is, a kind of presumptive fraud. In this way, on the one hand, it is conducive to enhancing the sense of responsibility of professionals and promoting the healthy development of the securities market; On the other hand, it is conducive to protecting the interests of investors and enhancing the credit of the securities market.
Second, the confirmation of the subject responsible for accounting information fraud.
1. Listed companies. Listed companies are the main body of accounting information fraud, and the reason why they frequently run red lights is because they are also the biggest beneficiaries of accounting fraud. Perhaps it is the "herding effect" and the method of not selecting people, which makes them take risks repeatedly. Listed companies must be responsible for "burying mines".
2 accounting firms (including accounting firms, asset appraisal firms, law firms, securities companies, lead underwriters, financial advisers, listing referees, etc.) and other intermediaries. ). If the CPA knows that the accounting information of the listed company is false and still issues an unqualified audit report, then both the accounting firm and the CPA should bear corresponding responsibilities. For example, Lihua Certified Public Accountants, which no longer exists, closed down because it issued unqualified audit reports to five listed companies that prepared false financial reports. If accounting firms and certified public accountants responsible for the authenticity of financial statements do not adhere to principles or make false statements, it will be more difficult for users of financial statements to identify the authenticity of financial statements. If other intermediaries also issue false asset appraisal reports and false legal opinions, and do not publish the information of listed companies on time, these intermediaries cannot escape their responsibilities for the losses caused by investors, and they are bound to be responsible for their irresponsible behavior.
3. Relevant government regulatory authorities. If we can forgive the lack of experience in securities management, then the relevant government regulatory authorities have failed to supervise and dispose of illegal listed companies, and have not strictly followed the provisions of the Company Law and the Securities Law, and resolutely put an end to the phenomenon of "minefield" leading to chaos in the securities market, so we cannot evade responsibility on the grounds that China's securities market is in the early stage of development.
4. News media. The responsibility of the news media lies in exaggerating and distorting the facts, which encourages the accounting information fraud of listed companies.
When confirming the subject of civil compensation, we must first make clear whether accounting information fraud is infringement or breach of contract. Because the confirmation and compensation scope of the civil compensation subject of these two acts are different. The subject of liability for tort is all infringers, and the scope of liability includes personal injury and property damage; The subject of liability for breach of contract is mainly the counterpart of the contract, generally not involving a third party, and the scope of compensation is limited to property losses.
Fraud is a kind of tort, and anyone who commits the tort should bear civil liability. In the securities market, accounting information is used to falsify, and some are listed companies' own behaviors, such as inflated profits and inflated registered capital. Some are the behaviors of accounting firms, asset appraisal firms, law firms and other intermediaries, such as issuing false audit reports and evaluation books; There is also the behavior of the news media and regulatory authorities, such as misleading propaganda, deliberately reporting in advance or delaying reporting. For the confirmation of these responsible subjects, we judge according to industry standards and general principles of civil law. Anyone who infringes upon the interests of investors shall be liable for compensation, and the infringer shall be jointly and severally liable for compensation.
Third, the determination of the victims of accounting information fraud.
The victims of accounting information fraud refer to investors who have suffered investment losses because of being misled by false accounting information, and there is an inevitable causal relationship between their investment losses and accounting information fraud.
Some investors invest in the stock of a listed company without seeing or knowing its accounting information, and are not victims; Some investors who don't invest in company stocks during the period of accounting information fraud are not victims; The losses suffered by some investors who do not buy or sell stocks in formal securities institutions are not the victims of accounting information fraud described in this paper; Is the real victim of company accounting information fraud; But if you don't have or have lost the relevant evidence, you can't be a victim; The loss of stock investment caused by accounting information fraud in non-securities market is not the victim of this paper.
Four, accounting information fraud standards
At present, China's laws do not clearly stipulate the criteria for judging accounting information fraud, which leads to differences between non-industry professionals and professionals on how to judge and on what basis. Professionals believe that it should be based on industry standards. As long as it meets the industry standards, it should be legal regardless of whether the content is inconsistent with the facts. Non-professionals believe that if the contents and facts are false and subjectively intentional, they should be considered as fraud. The former emphasizes the process, while the latter focuses on the result, both of which have some truth. However, we believe that judging whether an act belongs to accounting information fraud should be based on industry standards for the following reasons:
(1) Judging from the legality of industry standards, most industries in China have their own industry self-regulatory organizations, and our laws also recognize the legal status of each self-regulatory organization. Under the leadership of self-regulatory organizations in various industries, after repeated discussion, revision and practice, the professional code of conduct in this industry is formulated. Professional codes must be recognized by law before they are adopted. It can be seen that China's laws recognize the legitimacy of industry standards. Since it is legal, there is no contradiction and conflict with the law, and we can apply industry standards in the judgment.
(2) From a professional point of view, China's industry standards are the experiences summarized by various professionals in discussion and practice, deeply rooted in the practical soil, and have strong scientific and professional nature. If it is discussed and formulated by non-professionals, it will not conform to the law and will not.
Science. Therefore, the judgment needs to be based on industry standards.
(3) Judging from the value trend of the rule of law in China, China is developing towards the rule of law, and everything must be handled according to law. Industry norm is a code of conduct, which is recognized by law. Standardizing professional behavior according to it is also the embodiment of the rule of law.
Verb (abbreviation for verb) certification body
The determination of fraud in the securities market is still a blank in our country's law, which has caused great obstacles to the civil litigation of such cases and even led to the suspension of many cases. Therefore, it is urgent to put the legal appraisal institutions on the agenda to promote the standardized development of China's securities market. According to China's securities law, China Securities Regulatory Commission is the supervision and management institution of China's securities market. However, there is no restriction on its power, which leads to the over-concentration of power of the CSRC and the lack of necessary supervision mechanism. If the CSRC is an authorized institution, there is a problem of how to ensure its impartiality and authority. In fact, in the process of dealing with listed stocks such as Yi 'an Technology and Zheng, many shareholders questioned the supervision and management function of the CSRC. As a certification body, it must be professional, fair and authoritative. At present, there is no such specialized institution in China. It is the necessity of the development of the securities market and the need to improve the law enforcement in China to form an organization composed of professionals with high professional quality and no interest relationship with relevant securities institutions to identify fraud in the securities market.
Legal issues on the application of intransitive verbs
At present, the laws and regulations involved in accounting information fraud of listed companies are: criminal law, company law, securities law and accounting law. Legal responsibility is also administrative responsibility and criminal responsibility, and civil responsibility is not mentioned. There are no special provisions in civil law and civil procedure law on how listed companies and relevant departments and units compensate investors for the losses caused by false accounting information. There are some similar provisions, which are comparative principles and general, and are not operational. It is suggested to add specific provisions on civil compensation for investors' losses caused by false accounting information in the Civil Law or relevant laws and regulations.
Seven, the way of civil litigation
Market economy is an economy between equal subjects. In all kinds of economic relations, both sides have equal status and follow the principle of equal compensation. Therefore, when one party suffers losses, the party at fault must fulfill the compensation consideration. At present, China's laws rarely adopt the civil compensation system for the losses suffered by investors in the securities market due to fraud; On the other hand, since most of the securities markets are small and medium-sized investors, it is not only time-consuming and laborious to sue listed companies, intermediaries, and even the CSRC and the news media, but also difficult to guarantee the success. Investors are not compensated financially, which makes them have no enthusiasm for litigation and their civil rights and interests cannot be effectively protected. In order to improve the enthusiasm of litigation and intensify the crackdown on fraudsters, we suggest adopting a combination of group litigation and risk litigation. The so-called class action is a lawsuit in which a representative can be elected to represent the interests of * * * when the subject matter is the same and the number of parties is large. China's civil procedure law has clear provisions on this. Through group litigation, we can expand the litigation object, reduce the litigation cost and improve the litigation efficiency. Risk litigation is divided into lawyers and clients in proportion after winning the case, that is, the litigation risk is shared by lawyers and clients, which increases the litigation power. In the judicial process, if these two litigation methods can be organically combined, it will greatly improve the enthusiasm of investment victims in civil litigation and promote the role of China's civil compensation system.
Eight. Determination of loss amount
The ultimate goal of civil litigation is to obtain civil compensation, which is the most concerned issue for investors. Due to the unique volatility of the securities market itself, how to determine the losses of deceived investors has always been a very complicated problem. We might as well refer to the provisions of American law in this regard. The United States Securities Law (1933) stipulates that the difference between the amount paid for securities and the price of securities at the time of filing a lawsuit (1), or (2) the difference between the prices of securities sold in the market before litigation or (3) the difference between the prices set when the securities were sued or disposed of before judgment-if the loss is less than the amount that can represent the payment for securities. In addition, the calculation of damages in continuous information disclosure in the United States is determined in case law. For example, the difference between "the price of fraudulent transactions" and "the highest transaction price within a considerable period of time after the disclosure of important news" is presumed to be the amount of damages. It can be seen from these provisions that the law does not support indirect damages, that is, compensation for the loss of future income and compensation for the loss of opportunities. However, from an economic point of view, the losses suffered by investors due to information fraud are not only the existing benefits, but also the benefits that could have been obtained, which are usually considered as economic subjects when measuring economic decisions. Combined with the actual situation of China's securities market, it is suggested that the price of national debt should be used as a reference when calculating losses. The specific calculation method is: investment amount/price of national debt at the time of purchase × price of national debt at the time of prosecution-total price of securities sold at the time of prosecution. The reason why treasury bills are used as a reference is because the price of treasury bills is the most stable in the securities market, with little risk and can reflect the time value of money.