政府主导模式与证券公开规制的失效

中国证券公开规制的体制基础,即“政府主导模式”创造了激发“造假”(即虚假信息披露)行为的制度条件,公开规制法律的失效难以避免。中国当前体制弊端的实质是扭曲了政府与市场关系的基本定位,与公开规制的制度理念发生直接冲突。因此,证券市场的制度建构乃至其他社会制度变迁的过程,绝非单纯的移植先进法律规范和执行法律的问题。仅就公开规制而言,法律规范及其预设目标的实现,除了立法和执法的自身建设之外,还必须根据制度内蕴的价值和理念要求,创造法律适用的制度环境,尤其包括政府行为方式与公众的社会观念的转变。

Collapse of the Structure of Government Guidance and Securities Disclosure

The structure of securities disclosure is based on the guidance of the government, which inevitably results in a “company's doing cheating”, i.e. disclosing false securities information and fails to bring about the desired effect of the regulations related to disclosure. The essential reason of the structure's shaking in China now is that a proper relation between the government and the market has not been established and a conflict with the notion of disclosure regulations is thus precipitated. So, merely to introduce sophisticated legal norms and implement relevant laws cannot really settle the problems in respect of the establishment of a securities market and related changes in society. As to regulations concerning disclosure of information, to realize the desired aims and implement relevant laws, apart from the self-discipline of legislators and the law-enforcement agencies, it is of great importance for us to create a proper legal environment, to urge the government to change its behavior and to help the public to change their views in accordance with the inherent value and rationale of the structure.