证券行政执法当事人承诺制度的法经济学分析

Law and Economics Analysis of the Institution of Undertakings Made by the Parties to Securities Administrative Law Enforcement

  • 摘要: 新《证券法》创新性设立了证券行政执法当事人承诺制度,以解决刚性执法问题,促进行政执法效率有序提升。行政执法当事人承诺具有促进公私合作执法、避免行政相对人陷入困境和保护投资者的制度功能。从成本收益分析角度看,证券监管机关与行政相对人达成当事人承诺协议的主要激励是节约执法成本,但面临受到负面质疑的声誉成本;行政相对人则能够实现降低非货币类行政处罚、民事诉讼成本和刑事责任的收益,但需要承担先行赔偿投资者的成本。进一步改善证券行政执法当事人承诺制度实效,应当聚焦于提高相关主体适用激励、嵌入合规监督和加强制度衔接等改革措施。

     

    Abstract: The new Securities Law innovatively establishes the institution of undertakings made by the parties to securities administrative law enforcement to promote the orderly improvement of enforcement efficiency and solve the problem of rigid law enforcement. It has the institutional functions of promoting public-private cooperative enforcement, avoiding the administrative counterparties getting into insolvency and protecting investors. From the perspective of cost-benefit analysis, the main incentive for securities regulatory authorities to enter into commitment agreements with counterparts is to save enforcement costs, but they will face the questioning negatively impacting their reputational capital; while administrative counterparties will lower their non-monetary administrative penalties, civil litigation costs, and the risk of criminal liabilities, but they need to pay the compensation for investors in advance. To improve the effectiveness of the institution of undertakings made by the parties to securities administrative law enforcement, it should institute reform measures to increase the incentives for relevant parties, create a compliance monitoring system and strengthen the coordination of different institutions.

     

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