中國大陸證券特別代表人訴訟激勵機制之反思與完善

Rethinking and Improving the Incentive Mechanism of Litigation for Special Representatives of Securities in Mainland China

證券特別代表人訴訟制度是中國大陸「證券法」第95條第3款之創新性規定。透過檢視既有立法及實踐運行樣態發現，該制度存在訴訟成本負擔機制不合理、特別代表人勝訴獎勵制度未確立以及特別代表人訴訟支持機制不健全等問題。透過梳理證券集團訴訟之代表性模式可知，盡可能減少原告方之訴訟成本、對訴訟代表人實施補償與獎勵措施、引導訴訟相關主體予以支持和協助是制度良好運行之保障機理。優化現有之訴訟成本負擔機制、增設特別代表人之勝訴獎勵機制、重塑特別代表人訴訟之支持機制應是大陸證券特別代表人訴訟激勵機制之制度完善要點。

The securities special representative litigation system is an innovative provision Chinese mainland Article 95, Paragraph 3 of the Securities Law. A review of the existing legislation and practice shows that the system has problems such as the unreasonable litigation cost burden mechanism, the failure to establish a reward system for special representatives to win litigation, and the imperfect litigation support mechanism for special representatives. By sorting out the representative models of securities class action lawsuits, we can see that the mechanism to ensure the good operation of the system is to minimize the cost of litigation for the plaintiff, to implement compensation and incentives for litigation representatives, and to guide the relevant subjects to support and assist the litigation parties. Optimizing the existing litigation cost burden mechanism, adding a reward mechanism for special representatives to win litigation, and reshaping the support mechanism for special representative litigation should be the key points for improving the system of incentive mechanism for litigation by special representatives of mainland securities.