Judging from the securities supervision practice of our government in recent years, it is a prominent problem that the supervision ideas are not unified and the continuity of supervision policies is not strong.
From a global perspective, the guiding ideology of securities market supervision can be roughly divided into two types. The first is to emphasize the self-protection of investors on the basis of information disclosure, such as the securities supervision thought in the United States. The basis of this guiding ideology is that the legal system of securities market supervision is sound and investors are mature and rational. For example, the securities regulatory authorities in the United States believe that as long as listed companies disclose enough information and ensure the authenticity and reliability of this information, investors can make their own decisions, and investors will be responsible for the losses caused by decision-making mistakes. Timely, accurate and complete information disclosure of listed companies is the top priority of supervision. This kind of supervision thought is conducive to improving the efficiency of supervision, but the defect is that supervision focuses on the effective operation of the market and the protection of the interests of members of the stock exchange, and the protection provided to investors is often insufficient; The second way of supervision emphasizes the quality requirements of securities issuers and the responsibility to protect investors. For example, Hong Kong securities regulatory authorities believe that it is necessary to strengthen the supervision of listed companies and their market behaviors to ensure the quality of securities issuers, and intermediaries should bear corresponding legal responsibilities. Under the guidance of this idea, the legitimate rights and interests of investors can usually be well protected, but the disadvantage is that too strict supervision will lead to conservative management of enterprises and affect the financing efficiency and innovation ability of listed companies.
China's securities market has been established for a short time, the relevant laws and regulations are not perfect, and the number of institutional investors is small. Compared with listed companies, investors are in a weak position. In addition, the overall quality of listed companies is not high. Under this condition, the first regulatory idea can not effectively protect the interests of investors. Therefore, it is necessary to adopt the second regulatory idea mentioned above, that is, pay attention to the quality monitoring of listed companies and investor protection.
Second, improve the basic legal system of government supervision.
1. Clarify the independent legal status of securities regulators through legislation.
China's securities regulatory agency is called "the State Council Securities Regulatory Agency" in the Securities Law, and its legal status is directly affiliated to the State Council, which is adjusted with the adjustment of the government's term of office and cannot be independent of the government. Under the premise that China's administrative power is dominant and the NPC or the Standing Committee cannot form favorable restrictions on administrative power, the securities regulatory agencies are only responsible for administrative power, not investors, and the regulatory concept of protecting investors cannot be guaranteed. In this regard, we can learn from American legislative experience. The status of SEC is directly stipulated by law, and it is not responsible for the president of the United States, the State Council and other administrative agencies, so its independence can be guaranteed. Therefore, it is necessary to amend the Securities Law, so that the independent status of China's securities regulatory agencies can be clearly defined by law, so that they can supervise state-owned shareholders and state-owned intermediaries without being "captured". Only in this way can the supervision effect be guaranteed.
2. Increase the authorization of securities regulatory agencies through legislation.
The objects of China's securities supervision mainly include listed companies and intermediaries. The vast majority of listed companies are state-owned enterprises, mainly local state-owned enterprises in the early days, and now they are mainly central state-owned enterprises. Needless to say, the importance of these enterprises to local governments, even private enterprises or private enterprises that gain control through market acquisition, are the sources of various interests of local governments. Most of the representatives of intermediaries such as securities companies are also state-owned. In this sense, the regulatory targets of securities regulatory agencies are actually the central government and local governments. Therefore, if the status of the securities regulator is the same as SAAC, the securities regulator cannot supervise the SASAC, the major shareholder of listed companies. On this premise, the existing legal status and legal authorization scope of the existing securities regulatory agencies make the securities regulatory agencies become "weak subjects". It can be said that at present, China's legislature has less authorization to securities regulatory agencies, which leads to the inability of securities regulatory agencies to carry out their work effectively, which is also the direct reason for the unsatisfactory effect of government supervision at present.
In order to strengthen the means of securities supervision, the law must give securities supervision institutions greater power. The supervision department with certain legislative, judicial and law enforcement powers can prevent illegal activities in the securities market more effectively than the judiciary. SEC, the securities market regulator in the United States, has great independence. It has a wide range of powers, such as summons, investigation, hearing, punishment, prohibition and prosecution, and similar legislative power as much as 10. However, the power of China's securities regulatory agencies only includes the right to make rules, the right to administrative license, the right to administrative guidance and the right to administrative punishment, and the scope is much smaller. Therefore, it is necessary to increase the authorization of China's securities regulatory agencies through the Securities Law, so that they have extensive powers in securities supervision, such as establishing a system of "spitting out illegal profits" with reference to the United States, recovering and distributing them from investors; Give the securities regulatory agency the right to seize property, and finally make the securities regulatory agency become the fourth institution besides legislation, justice and administration through legislation.
At present, some progress has been made in the authorization of securities regulatory agencies in China, but it is far from enough. At present, the powers that need to be given to the securities regulatory agencies urgently include the right to investigate (the right to directly investigate the financial and bank accounts of the investigated person without prior notice), the right to summon (the right to summon the parties, and it is illegal to refuse to summon) and the inversion of the burden of proof (the burden of proof is borne by the investigated person).
3. Improve the supporting laws and regulations of securities market supervision.
At present, the Securities Law and the Company Law being implemented are not clear in terms of supervision and implementation, which seriously affects the implementation effect. Pay close attention to the formulation of the Securities Market Supervision and Enforcement Law, make up for the gaps in the market supervision operation procedures, methods and penalties in the Securities Law, and strengthen the provisions on the regulatory policy formulation procedures, regulatory policy implementation procedures, punishment targets and procedures, so that the securities market supervision and enforcement can be legally followed and implemented.
Third, improve the system construction of government supervision institutions.
1. Remodeling the securities market supervision organization from the perspective of "decentralization"
China's securities market implements a unified supervision model. The CSRC and its subordinate institutions are responsible for the administrative implementation of securities supervision, while the functions of securities legislation and supervision are mainly exercised by the NPC and the judicial department. Considering the professionalism and complexity of securities supervision, it is necessary to reshape the securities market supervision system from the perspective of "separation of powers" and establish professional institutions to exercise the functions of securities legislation and securities supervision respectively.
As for the legislature, it is suggested that the National People's Congress Standing Committee (NPCSC) should set up a securities decision-making committee. The securities decision-making committee is responsible for the securities legislation in a broad sense, including not only the laws in the usual sense, but also the formulation of major regulations and policies. In terms of personnel composition, it is mainly composed of economists and scholars in the financial industry, who are responsible for the preliminary investigation and policy demonstration of major policies.
In terms of regulatory agencies, it is suggested to set up a national securities re-regulatory commission. The narrow sense of supervision is undertaken by judicial supervision. The State Securities Regulatory Commission is responsible for evaluating and supervising the implementation of securities market regulatory policies, supervising the actual performance of regulatory practitioners and regulatory departments, and punishing all illegal institutions and personnel according to law.
2. Strengthen the supervision of regulatory agencies.
The top managers of listed companies in China are often appointed by local governments, and the top managers of intermediaries such as securities companies often come from securities regulatory authorities or local governments, or even return to securities regulatory agencies. Therefore, there are countless connections between regulatory agencies and regulated objects, forming the so-called "revolving door" phenomenon. To avoid the "revolving door" phenomenon of supervision, it is necessary to set up a firewall between the supervisor and the supervised, limit the free flow of officials between the supervision institution and the supervised unit, establish the credit file of the supervisor, and establish a supervision performance evaluation system, and so on.
Fourth, strengthen the external cooperation of government supervision.
1, make full use of public supervision
The timeliness and extensiveness of social public supervision are unmatched by government supervision, and the "Lantian incident" is an obvious example. Government regulatory agencies should promptly guide and make use of public supervision. At present, the first thing that needs to be strengthened is the legal restraint and self-monitoring function of securities intermediaries. Including auditing the financial statements of listed companies in accordance with international accounting standards and prudent principles, restricting the legal liability of accounting firms to the principle of unlimited legal liability, and establishing a strict authentication system for listed documents by law firms.
2. Expand cooperation with other financial professional regulators.
It is necessary to strengthen the infiltration supervision of mixed operation and establish a communication mechanism of joint supervision, such as upgrading the current joint meeting of China Banking Regulatory Commission, China Securities Regulatory Commission and China Insurance Regulatory Commission to a daily work system. At the same time, we can learn from the supervision model of financial holding companies in the United States and establish the corresponding umbrella supervision prototype. In the umbrella supervision system, the banking supervision authority should be the core.
3. Strengthen international regulatory cooperation.
The main contents of international cooperation in securities supervision include: establishing information sharing mechanism, coordinating capital adequacy requirements, establishing unified information disclosure and accounting standards for cross-border issuance and listing of securities, coordinating and solving the new challenges brought by the development of information technology and computer network to international securities supervision, and reducing the risk of international liquidation. For China's securities regulators, strengthening international cooperation in securities supervision can not only improve the efficiency of securities supervision in China and control the international transmission of risks, but also promote the standardization, internationalization and modernization of securities supervision in China.
References:
[1] Tian, An Empirical Study on the Risk Characteristics of China Stock Market [J]. Economic Science, 2003; ( 1):20—30
[2] Liu Xiaomeng. Research on the Government's Risk Prevention Behavior in the Securities Market [J]. Financial Research.20065438+0; ( 12): 13- 19
[3] Zhang Wenkui. China Stock Market Risk: Regulatory Transformation, Rectification and Soft Landing. Shanghai Finance, 2002; (5):7— 10
[4] Deng Shaoling, Dai Guangyue, Wang Zicheng. Risk management of securities institutions. East China Economic Management, 2002; ( 12):35—37