摘 要
从 1990 年末上海证券交易所成立运行开始，新中国证券市场迈着稚嫩的步伐一路前行。在证券市场不断发展过程中，内幕交易案件、信息披露违规、“老鼠仓”以及大股东利用资本权力侵害中小股东利益事件、上市公司欺诈行为屡有发生，甚至是屡禁不止。
证券市场违规事件的一再重复出现，表明我国证券市场监管的能力不足、监管的力度不够和有效的监管差强人意。虽然伴随着每一次违规违法事件的发生，我国证券市场监管的措施都会在借鉴欧美发达国家证券市场监管的经验基础上不断提高、完善和发展，甚至在某些方面实现了跨越式、突破性的发展，但仍不能有效阻止层出不穷的证券市场的违法行为，因此我们有必要加强对证券市场监管有关问题的研究，完善各项监管措施的制定和实施，最终构建和完善证券市场的监督体系。本文尝试运用法经济学、金融学的理论知识，从多角度、多视角研究、分析我国在证券市场监管方面存在的问题。在此之上，我们就进一步完善证券市场监管制度、强化证券市场监管的规范、提高证券市场监管的质量、构建和完善证券市场的监督体系等方面进行了一系列研究和探索。本文第一部分探讨了证券市场监管的理论依据，第二部分分析了我国证券市场监管方面存在的问题、制度规范化问题及其影响监管的因素，第三部分简要总结介绍了世界各国证券市场监管的经验，第四部分在借鉴世界各国证券市场监管措施和经验的基础上，结合我国证券市场的发展现状，尝试提出加强我国证券市场监管的改革取向。本文主张在法治的理念下按照法治的原则通过监管法律制度建设，建立一个由多元化监管主体、多样化监管手段和多维度监管措施组成的有机的证券市场监管体系。同时，适时在证券市场监管制度体系中引入集团诉讼并积极完善公益诉讼制度，从而建立一个既符合我国基本国情又符合国际化发展潮流的证券市场监管体系，不断加强证券市场在各个方面的监管，从而不断提升我国国民经济发展的水平。
关键词 证券市场 有效监管 制度重构
Abstract
Since the establishment of the Shanghai Stock Exchange in late 1990,China's securitiesmarket has marched forward tenderly. In the course of the continuous development of thesecurities market, insider trading cases, violations of information disclosure, “Rat” and theevent of major shareholders holding the capital power against minority shareholders, thefraudulent conduct of listed companies occur frequently, and even repeat. Violations emergingendlessly in the securities market indicate that the supervision power is inadequate, thesupervision effort is weak and the supervision efficiency is unsatisfactory. Accompanied withthe occurrence of violations, the securities regulatory measures will be strengthened, perfectedand improved continuously on the basis of the successful regulatory experience of supervisionon the securities market in developed countries of Europe and America. However, we still cannot effectively stop the securities violations, so we need to further strengthen the study of theeffectiveness of securities market regulation, and strengthen the regulatory measures toimprove the effectiveness of securities market regulation. This thesis attempts to apply thetheory of economics and finance law to the analysis on the presence of regulation issues in thesecurities market from multiple perspectives and dimensions. The thesis studies or explorescontinuously how to further reconstruct the regulatory systems of securities market , how tostandardize the regulation of securities market, how to further improve the regulationquality of the securities market, how to further strengthen the effectiveness of the supervisionof securities market. The first part of this thesis discusses the theoretical basis for securitiesmarket regulation. The second part analyzes the existential problems in supervision,standardization of regulations and the effectiveness factors that influence the effectivesupervision. The third part briefly summarizes the successful experience of market regulationall over the world. The fourth part tries to put forward the orientations of reforms in China'ssecurities market by learning from effective regulatory measures from other countries andconsidering the current situations of China's securities market. This thesis advocates toestablish a new supervision system composed of diverse supervision agencies, various andmulti-dimensional supervision measures under the principle of justice. Meanwhile, we timelybring in the system of securities regulation regime and actively perfect the system of publicwelfare litigation in order to establish a securities supervision regulation consistent with ourbasic national conditions and international trend of the securities regulations, andcontinuously improve the level of securities regulation as well as national economicdevelopment.
Key words securities market effective supervision reconstruction of supervision system
目 录
第 1 章 导 言························································································································· 1
1.1 选题背景与研究意义·····································································································1
1.1.1 选题背景··················································································································1
1.1.2 研究意义···················································································································2
1.2 国内外研究现状··············································································································3
1.2.1 国外研究综述···········································································································3
1.2.2 国内研究综述···········································································································5
1.2.3 国内、外研究评述··································································································7
1.3 研究思路与方法··············································································································8
1.3.1 研究思路···················································································································8
1.3.2 内容框架···················································································································8
1.3.3 研究方法···················································································································9
1.4 创新点····························································································································· 9
第 2 章 证券市场监管的相关理论························································································10
2.1 证券市场监管的基础理论···························································································· 10
2.1.1 证券市场监管的内涵····························································································· 10
2.1.2 证券市场监管的内容····························································································· 10
2.1.3 证券市场监管的原则···························································································· 11
2.1.4 证券市场监管的意义····························································································· 11
2.2 证券市场监管的原因分析···························································································· 12
2.2.1 证券市场监管的一般原因····················································································· 12
2.2.2 证券市场监管的特殊原因····················································································· 13
2.3 影响证券市场监管的因素···························································································· 13
2.3.1 证券市场监管目标································································································· 14
2.3.2 证券市场监管体系································································································· 15
2.3.3 证券市场监管手段································································································· 16
2.3.4 证券市场监管影响因素传导机制········································································· 16
第 3 章 我国证券市场监管现状及存在问题········································································ 19
3.1 我国证券市场监管的现状···························································································· 19
3.1.1 我国证券市场监管制度现状················································································· 19
3.1.2 我国证券市场行政监管现状················································································· 20
3.1.3 我国证券市场自律监管现状················································································· 20
3.2 我国证券市场监管存在的问题···················································································· 21
3.2.1 证券市场监管理念相对落后················································································· 21
3.2.2 相关监管法律法规不够健全················································································· 22
3.2.3 行政监管措施缺乏有效性····················································································· 23
3.2.4 自律监管作用未能充分发挥················································································· 23
3.2.5 监管主体之间缺乏有效制约················································································· 24
第 4 章 国外证券市场监管模式及监管经验······································································ 25
4.1 集中型为主的监管模式································································································ 25
4.1.1 监管法律规范体系及内容····················································································· 25
4.1.2 监管主体、手段·····································································································26
4.2 自律型为主的监管模式································································································ 26
4.2.1 监管法律规范体系及其内容················································································· 27
4.2.2 监管主体、手段·····································································································28
4.3 中间型为主的监管模式································································································ 28
4.3.1 监管法律规范体系及内容····················································································· 28
4.3.2 监管主体、手段·····································································································29
4.4 西方主要发达国家证券市场监管经验对我国的启示·················································29
4.4.1 集中型监管模式同自律型监管模式的融合是未来发展的趋势·························· 29
4.4.2 以国情为基础构建证券市场监管的科学法律体系··············································30
4.4.3 加强对证券市场监管机构的监督········································································ 30
第 5 章 加强我国证券市场监管的对策················································································32
5.1 建立证券市场监管体系································································································ 32
5.1.1 我国证券市场监管体系设计的出发点································································· 33
5.1.2 我国证券市场监管体系的设计············································································· 33
5.2 革新证券市场监管理念，充分利用市场竞争机制·····················································34
5.2.1 重塑行政监管理念，确定科学的监管边界··························································34
5.2.2 充分利用市场竞争机制，强化市场自我完善功能··············································35
5.3 建立、健全对监管者的监督约束机制······································································· 35
5.4 充分发挥自律监管作用，加强证券市场自律监管·····················································36
5.5 建立科学合理的惩罚、激励机制················································································ 37
5.5.1 充分利用惩罚机制，提高违法成本····································································· 37
5.5.2 建立完善激励机制，增加守法收益····································································· 37
5.6 强化司法机关作用，充分利用投资主体能动性·························································38
5.6.1 强化司法机关权力制衡作用················································································· 38
5.6.2 建立完善的集团诉讼制度····················································································· 39
5.6.3 完善证券市场公益诉讼机制················································································· 39
结 语································································································································· 41
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