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近年来,因在二级市场违规增持上市公司股票未遵守《证券法》第86条的信息披露义务和慢走规则,引发了包括西藏旅游、ST新梅等在内的上市公司及其大股东与违规增持者的诸多法律纷争。对于上述违规增持行为所应承担的证券民事责任,证券法未进行明确设定。证券行政监管部门也仅对违规增持所涉信息披露违法行为进行了处罚。面对这样的案件,司法者尽管意识到了违规增持行为是对《证券法》三公原则以及任何人不得因自己的违法行为而获利这一基本民商事价值准则的违反,但是基于各种因素考量,最终选择了保守的司法策略,未对违规增持行为进行否定性评价。本文以对案件中司法者司法策略选择的分析为基础,意在分析司法在证券市场治理中面临的难题及其成因,并提出改进策略。
In recent years, listed companies such as Tibet Tourism and ST Xinmei, as well as their large listed companies, have been triggered by the non-compliance with the information disclosure obligations and slow walking rules of the securities of listed companies in the secondary market. Many legal disputes between shareholders and illegal holders. As for the civil liability for the securities that should be assumed by the aforesaid violation, the securities law has not been clearly set. Securities regulatory authorities also only penalized illegal information disclosure violations involved in illegal holdings. In the face of such cases, judicial officials, though aware of the illegal holdings of behavior is the violation of the three principles of the “Securities Law” and the basic principle of civil and commercial value that no one should profit from their own illegal activities. However, based on various factors Consideration, the final choice of a conservative judicial strategy, no negative evaluation of the behavior of illegal holdings. Based on the analysis of the judiciary’s choice of judicial strategy in the case, this article aims to analyze the problems and causes that the judiciary faces in the governance of the securities market and puts forward the improvement strategies.