| 英文摘要 |
China just introduced its version of private securities class action rule in the Securities Law of the PRC 2019. It combines an opt-out rule with a public agency as the representative of plaintiffs’ groups, which intends to control frivolous litigation. This article argues that this rule is inefficient and proposes a new public-and-private-convergence enforcement model based on the following studies. Firstly, from the history of the regulation of securities market in the US, UK, and Australia, this article finds out that neither the private class action nor the public enforcement should be used alone as the primary enforcement method. Because a full-scale class action tends to over-deter and public enforcement tends to under-deter. Also, the compensation rate is low and the resolution time is long. Secondly, based on the experiences of private securities class action cases in the US, Australia, Japan, South Korea and Taiwan, this article finds out that it is hard to adjust the incentives of private securities class action to achieve balance. Moreover, since the optimal deterrence level is hard to ascertain, so without this benchmark we could not know what the right number of cases is, which makes the theory of using a full-scale US-style private securities class action to increase deterrence level questionable. Then, this article turns to examine ADR in the US and the Netherlands--Arbitration and Settlement to see if they can be alternatives to the private class action, but finds out they are not suitable to resolve cases on a large scale. Lastly, due to the above failures, this article proposed that a new enforcement style combining private enforcement with public enforcement should be built. To rebuild the enforcement model, we should reconsider our policy indicators, and turn to focus on increasing the compensation rate and decreasing enforcement costs rather than increasing the numbers of cases. Based on this policy choice, this article proposes a new enforcement style combining private enforcement with public enforcement from the experiences of different jurisdictions, including the UK, Australia, Denmark, where the resolution, especially the compensation regime is led by the securities regulator instead of the court.
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