债券虚假陈述纠纷中的中介机构民事责任认定与路径优化——基于新《证券法》5年实践的思考

Core Viewpoint - The implementation of the new Securities Law has led to an increase in litigation cases related to false statements in the bond market, shifting the judicial practice from generalized joint liability to a rational return to matching fault and responsibility [1][2]. Summary by Sections Institutional Evolution: Reconstruction of Intermediary Responsibility - The new Securities Law significantly modifies the conditions for public bond issuance, emphasizing the quality of information disclosure over government endorsement, which compels intermediaries to shift from formal compliance to substantive risk control [3]. Changes in Responsibility Subjects - The responsibility subject has expanded from "issuers and listed companies" to "information disclosure obligors," including direct responsibility personnel from sponsors and underwriters, highlighting the legislative focus on the quality of information disclosure [4]. Changes in Responsibility Allocation - The new Securities Law continues to prioritize institutional responsibility without listing personnel from securities service institutions as direct responsible parties, establishing a layered responsibility mechanism where institutions bear external responsibility while individuals may face internal accountability [5][6]. Changes in Adjudication Rules - The new Securities Law strengthens the presumption of fault for securities service institutions in cases of false statements, requiring differentiation between intentional and negligent acts to determine legal liability [7]. Challenges of Bond Market Specificity - Despite the establishment of a preliminary rules system for false statement liability, there remains a "stock-centered" path dependency that does not adequately address the unique characteristics of the bond market [8]. Ambiguity in "Materiality" Standards - The current judicial practice tends to generalize the concept of materiality in false statements, failing to adequately assess the actual impact of specific false information on the issuer's repayment ability [9]. Inadequate Adaptation of Fault Criteria - Existing rules for determining intermediary responsibility primarily target the stock market, lacking sufficient consideration of the bond market's reliance on repayment capacity information [10][11]. Lack of Standardization in Responsibility Determination - There is a long-standing imbalance between the supply of rules for determining intermediary responsibility and the demand for uniform adjudication, leading to significant discrepancies in liability allocation across similar cases [12][13]. Higher Risks in Recovery Mechanisms - Compared to the stock market, the feasibility of recovery for intermediaries in the bond market is significantly higher due to the nature of bond issuers, often leading to situations where recovery is nearly impossible [14]. Optimization of Adjudication Rules - Proposes a gradient responsibility model based on fault and causal force, aiming to provide operational standards for the allocation of intermediary responsibility in the bond market [15][16]. Dynamic Calculation Model for Responsibility Scope - Emphasizes the need for a dynamic calculation model to ensure that the scope of responsibility aligns with the degree of fault and causal force, enhancing the precision of liability allocation [17][18]. Innovation in Recovery Mechanisms - Suggests establishing a final responsibility distribution rule based on fault degree and causal force size, ensuring that true fault bearers are held accountable while preventing intermediaries from becoming the "risk sponge" for issuers' illegal activities [19][20]. Conclusion - The implementation of the new Securities Law marks a significant milestone in the marketization, legalization, and internationalization of China's capital market, necessitating a scientifically sound and predictable responsibility system to balance investor protection and market vitality [21].