Type analysis of securities market administrative penalty

Date: 2017-11-08

1. The securities market shall have the right to impose administrative penalty laws and regulations
At present in the field of securities market, only the "securities law" (law), "stock issuance and trading management provisional regulations" (administrative regulations) has the right to set up the administrative punishment, in addition to the "law on administrative punishments clearly stipulated in the" administrative punishment, the two laws and regulations involved in punishment measures as follows:
1. The "securities law" includes the following penalties:

(1) eliminate the qualification for qualification or securities qualification:
(2) suspension of business license suspension;
(3) order to stop the issuance;
(4) order to stop the underwriting or sale of agents;
(5) to order correction;
(6) to order the disposal of illegally held stocks and securities in accordance with the law;
(7) ordering the closure or cancellation of the securities services business license;
(8) market prohibition;
(9) limited shareholder rights:

.2. The following penalties are specified in the provisional regulations for the management of stock issues and transactions:
(1) they shall be ordered to return the illegal funds raised;
(2) limit, it suspends securities business or revokes its securities business license
Second, securities market is often punished: : administration
The two laws, regulations and the "law on administrative punishments" has about warning, a fine, confiscate the illegal income and the illegal property of common rules, so the above three types of administrative penalties applicable types all belong to securities market.

Third, the securities market new administrative penalty analysis
(1) the "ordered" class measures shall not belong to: punishment: administration
Shall be ordered to stop the issue, shall be ordered to stop the underwriting or acting sale, shall be ordered to correct, it shall be ordered to deal with illegal possession of stocks, securities, ordered to close down or revoke the securities service business license, shall be ordered to refund the illegal proceeds through a series of measures, such as in essence is to stop illegal activities, and no damage to the other party's legitimate rights and interests or the lawful property loss. The core of administrative punishment is to reduce the legal rights and interests of the relative person, and it is a real punishment. Such measures shall be ordered to return the illegal gains against the object originally is illegal income, illegal income is not protected by law, does not cause loss to the other party legal property, so the author thinks that it does not belong to administrative penalties in the true sense, so it will not be adopted for the type of administrative penalty.
(2) other new administrative penalties
1. Eliminate the qualification or qualification of securities qualification
About "to ban, cancel the qualification or securities practice qualification", which although theorists' banned 'executive compulsory measures or administrative punishment in dispute, but starting from the provisions of the "securities law", it is more in line with the "securities law" set up a new administrative penalty measures first, clamp down on the implementation of the subject is administrative organ; Secondly, it is the premise that the illegal ACTS violating the administrative law are violated, and the illegal behavior is carried out by the banned objects; Third, under the ban administrative purposes, the right to limit the counterpart, sanctions against illegal ACTS, the parties will be the actual impact on the rights of the parties, and in essence, order to suspend production or business operation, and the license business license behavior are deprived of the illegal administrative organs in accordance with the specific behavior ability and qualification penalty, the parties in accordance with the administrative law, administrative punishment should belong to sanctions against the illegal behavior of a kind of administrative behavior, and "ban" is one of the biggest sanctions act, has administrative sanctions, therefore, to ban completely accords with the characteristics of administrative punishment.
"Undo" though not strictly legal term, but in the stock market in the field of "undo" similar "suspended" in the "law on administrative punishments", though the cancellation of the general situation and revoked in directed within the scope of administrative license, but according to the state council "withdraw, revocation, cancellation, revocation of administrative licensing application rules of" the provisions of the revocation applies only if the administrative organ illegal administrative licensing decision or the other party illegal administrative licensing, and revocation of applicable premise is the licensee for administrative licensing after the serious violations. Cancel the qualification of the "securities law" or securities practice qualification and "stock issuance and trading management provisional regulations" in the situation of application of revoke its securities business license as the license of enterprises or individuals administrative license after severe violations, revocation of applicable condition, it is similar to "undo" nature "suspended", so it should belong to the securities market is one of the types of administrative penalties
0.2, the market is barred
According to the regulation of the "securities law", the English market forbid certain in the long period of time or to prohibit certain have a major violation of the securities markets of personnel engaged in buying and selling of securities business and securities business related business of a kind of legal system, in fact no-go decision about specific securities, similar to the drunken driving after the accident was the driving life this kind of penalty, is a kind of subsequent punishment measures, is the administrative law in the sense of qualification penalty, single look from the rules, the accord with the nature of the administrative penalty.
Practice, according to the SFC website published documents, the securities and futures commission to administrative penalty and markets as two categories of public (administrative punishment decision, market no-go decision), tendency to markets as a non-executive punitive regulatory measures. Lead to judge the nature of the markets need to this practice, combined with the specific punishment documents if made in the form of decision for administrative penalty, and in the end "if is not satisfied with this decision, the parties can be received within 60 days from the date of this decision to the China securities regulatory commission to apply for administrative reconsideration, and also can be in the received within 6 months from the date of this decision directly to the people's court having jurisdiction on administrative litigation", then the market stands for: administrative penalties, if not in the form of decision for administrative penalty, then the markets is not administrative punishment.

The types of administrative penalty in securities market are as follows:
1, warning
2, fine
3. Confiscate illegal gains, confiscate illegal property and confiscate illegally obtained stocks
4. Eliminate any qualification or securities qualification
5. Suspend or revoke business license
6. Limit, suspend its securities business or revoke its securities business license
7. Market prohibition
8. Limited shareholder rights
9. Administrative detention