保荐人制度研究

【作者】 胡卿；

【导师】 徐淑萍；

【作者基本信息】 安徽大学 ， 经济法学， 2005， 硕士

【摘要】 证券市场的信息不对称和创业板市场的高风险推动了现代证券市场的制度创新,保荐人制度便是这一创新的成果。在国外,保荐人制度通常设立在创业板市场。 在保荐人制度中,保荐人是与上市推荐人、证券承销商、代理人、保证人等既有联系又相互区别的一个特殊法律主体,严格的资质条件、全面的工作职责、较长的职责期限以及承担较严格的法律责任是其特有的法律特征。 保荐人在证券市场中处于一个特殊的法律地位,既是保荐对象的代理人,又是保荐对象的监管者,其本身又被置于证券监管机构与证券交易所的双重监管之下。而在所有的法律关系中,保荐人作为保荐对象法定信息披露的担保义务人,是其最本质的身份。 保荐人制度对证券市场的健康发展起着极为重要的作用,其导向功能、整合功能和控制功能的发挥,促进证券市场的健康发展,保护投资者的利益。但是,世界上任何事物都是一分为二的,保荐人制度亦然,有利也有弊。保荐人制度的建立会增加证券市场的道德风险与守法成本,还可能加剧证券市场的寻租活动。这些又会阻碍证券市场的健康发展,损害投资者的利益。 英国的AIM市场、香港的GEM市场和加拿大TSE所属的创业板市场建立的保荐人制度,已经比较成熟,这些市场为保荐人的资格条件、保荐职责设计了一整套的制度,而且较成功地实现了对保荐人的监管,确保了保荐人制度作用的发挥。这对进一步完善我国保荐人制度很有借鉴意义。 我国的保荐人制度业已建立,这是我国证券发行制度的革命性变革,是中国证监会根据我国“新兴加转轨”的证券市场特点,从资本市场发展的全局出发,推出的旨在进一步保护投资者特别是公众投资者的合法权益、提高上市公司质量的重要举措。但《证券发行上市保荐制度暂行办法》仍然存在着许多不足:在保荐人资格要求方面,对保荐人的诚信要求过低,个别条款定义不明,缺乏可操作性;在保荐人职责方面,保荐人与其他中介机构、保荐对象之间责任不清,职责期限较短,免责条件模糊,保荐人权责失衡;在保荐人监管方面,更多还原

【Abstract】 The information asymmetries of security markets and the high risks of the second board have pushed the systematic innovation, which results in the sponsor’s system. The system is usually established in the second board.In sponsor’s system, the sponsor is a special legal body boasting of strict requirements and overall professional responsibilities, which is not only correlated with, but distinguished from listing referees, distributors, agents, guarantors, etc. as well, whose unique characteristic is that he/she has a strict qualification, an overall and longer duty time and that he/she bears strict legal responsibilities.The sponsor has a special legal status in the stock market, who is not only the agent of his/her subjects sponsored, but also the supervisor of his/her subjects sponsored. He/She is also put under the double supervisions of the security regulators and stock exchanges. In all legal relations, the sponsor’s most essential identity is that he/she acts as the guarantee obligator of his/her clients’ disclosure of legal information.Sponsor’s system undoubtedly plays an extremely important role to the sound development of the security market and to the protection of the investors’ interests with its functions of conducting, combining and controlling. However, everything has two sides in the world, so does the sponsor’s system, which has both merits and deficiencies. The establishment of the sponsor’s system will increase the moral risks of security market and the costs of law-abiding, and will possibly aggravate the activities of rent-seeking in the security market. These will hinder the sound development of the security market and damage the investors’ interests.The sponsor’s system set up in the UK’s AIM market, Hong Kong’s GEM market and the second board affiliated to Canada’s TSE market is comparatively matured. These markets have designed a whole set of systems for the sponsor’squalification condition, responsibilities for the subject sponsored, and has successfully achieved the supervision of the sponsor, which has guaranteed the full play on function of sponsor’s system. Those are meaningful for China to further perfect the sponsor’s system.The sponsor’s system has already established in China, which is a revolutionary reform of the country’s stock-issuing system and is also an important measure taken by its stock supervisory committee to further protect the legal interests of the investors, esp. those public ones, to improve the qualities of those listed companies, in accordance with the characteristics of its security market, i.e., "newly built in addition to transition" and, in accordance with the overall situations of the developments of its capital market. However, the " Temporary Regulations on The Sponsor’s System in Security Market" still has many shortcomings: As to the sponsor’s requirements, the requirements of a sponsor’s liability are too low, and some specific clauses are unclearly defined, lacking of practical uses. As to the sponsor’s duties, the responsibilities between a sponsor and an intermediate or a subject sponsored are still vague; the duration of responsibilities is relatively short; the exemption of responsibilities is unclear; the sponsor’s rights and responsibilities are unbalanced. As to the supervision of the sponsor, the sponsor’s continuous qualification is not fully supervised; the legal body of supervision is incomplete; the punishment against those sponsors who violated regulations is not strict, lacking of the system to force them to bear civil legal responsibilities.In order to perfect China’s sponsor’s system, first, the supervision to the sponsor’s qualification must be strengthened; the requirements for being a sponsor must be raised; the demand for sponsor’s independence must be perfected and the prohibition to enter the security market must be established; second, the sponsor’s duties must be strengthened; the standards of dedicated investigations must be set up; the responsibilities between a sponsor and an intermediate or a subject sponsored must be clarified; the reasonable durations of responsibilities must be fixed; the sponsor’s rights must be added; third, the security supervisory system must bereformed; the functions of the self-regulating and self-supervising of the trade must be fully utilized; and most important of all, the legal status of the self-regulating and self-supervising of the security market must be clarified at present; finally, the legal responsibility system of the sponsor must be perfected, esp. the system to force the sponsors to bear legal civil responsibilities must be established in order to strengthen the punishments to those who violated regulations, in order to raise the sponsor’s cost of violating regulations, in the end, in order to guarantee the full play of the function of sponsor’s system.更多还原