陈丽华等23名投资人诉大庆联谊公司、申银证券公司虚假陈述侵权赔偿纠纷案
原告：陈丽华等23名投资人（名单略）。
被告：大庆联谊石化股份有限公司。住所地：黑龙江省大庆市。
法定代表人：李秀军，该公司董事长。
被告：申银万国证券股份有限公司。住所地：上海市常熟路。
法定代表人：王明权，该公司董事长。
原告陈丽华等23名投资人因认为被告大庆联谊石化股份有限公司（以下简称大庆联谊公司）、被告申银万国证券股份有限公司（以下简称申银证券公司）的虚假陈述行为给其投资股票造成了损失，侵犯其民事权益，向黑龙江省哈尔滨市中级人民法院提起诉讼。
原告诉称：被告大庆联谊公司和被告申银证券公司在证券市场实施虚假陈述行为，已经受到中国证券监督管理委员会（以下简称中国证监会）的处罚。这不仅有中国证监会的处罚决定证实，大庆联谊公司1999年4月21日发布的董事会公告中也承认。二被告的虚假陈述行为使原告在投资大庆联谊公司股票中遭受了损失，应当对给原告造成的损失承担赔偿责任。请求判令大庆联谊公司给原告赔偿经济损失960
063.15元，申银证券公司对此承担连带赔偿责任；由二被告负担本案诉讼费和诉讼成本费。
原告提交以下证据：
1.身份证明，用以证明23名原告的诉讼主体资格合法；
2.1997年4月26日《中国证券报》上刊登的大庆联谊公司《招股说明书》、1997年5月20日《证券时报》上刊登的大庆联谊公司《上市公告》、1998年3月23日《中国证券报》上刊登的大庆联谊公司《1997年年报》，用以证明虚假陈述事实；
3.2000年3月31日中国证监会所作的证监罚字[2000]年第15、16号《处罚决定书》，1999年4月20日、1999年11月26日和2000年4月26日大庆联谊公司发布的三次董事会公告，用以证明行政主管部门已经对二被告的虚假陈述行为进行了处罚，大庆联谊公司对其虚假陈述的事实不予否认；
4．上海证券登记结算公司黄浦代办处出具的股票交易记录单、关于原告经济损失计算方法的综合说明、经济损失计算表，用以证明原告方的经济损失以及该损失的计算方法；
5.对邮寄费、查询费、差旅费、通讯费、材料费、诉讼费、人工费以及其他杂费等费用的计算表，用以证明原告方主张的诉讼成本。
被告大庆联谊公司辩称：1.本案所涉虚假陈述行为，是大庆联谊公司石化总厂（以下简称联谊石化总厂）以大庆联谊公司名义实施的；大庆联谊公司是在1998年5月6日才依法取得法人资格和营业执照，不应对此前联谊石化总厂实施的违法行为承担民事责任；2.中国证监会的处罚决定是于2000年4月27日公布的，也就是说，2000年4月27日是大庆联谊公司虚假陈述行为的揭露日。1999年4月20日大庆联谊公司的董事会公告，仅是对投资者进行风险提示。原告方将这个日期作为大庆联谊公司虚假陈述行为的揭露日，不符合法律规定；3.原告方投资大庆联谊公司股票的交易损失，主要是受系统风险及影响股价走势的多种因素所致，与大庆联谊公司被揭露的虚假陈述行为没有显而易见的因果关系；4.原告既然主张其于1999年4月21日从大庆联谊公司董事会公告中知道了虚假陈述行为的存在，其提起本案侵权之诉时，就超过了法律规定的两年诉讼时效期间，其诉讼请求不应得到支持。应当驳回原告的诉讼请求。
被告大庆联谊公司提交以下证据：
1.联谊石化总厂出具的《证明》、大庆联谊公司董事任职情况列表、《招股说明书》，用以证明虚假陈述行为是大庆联谊公司的实际控制人联谊石化总厂实施的，应当由联谊石化总厂直接承担虚假陈述的法律责任；
2.《企业法人营业执照》，用以证明大庆联谊公司是在1998年5月6日合法成立，因此对成立前联谊石化总厂以其名义实施的行为不应承担责任；
3.中国证监会的证监罚字[2000]年第16号《处罚决定书》，用以证明虚假陈述行为是多个单位与个人实施的，原告方放弃向其他虚假陈述参与人主张权利，会造成本案许多事实不能查清；
4.另案股民严伟虹的《起诉状》，用以证明股民是在2000年4月27日才得知大庆联谊公司的虚假上市行为，因此应当将2000年4月27日确定为大庆联谊公司的虚假陈述行为揭露日；
5.上海证券交易所综合指数、大庆联谊公司股票和齐鲁石化等8家上市公司股票的K线图，用以证明原告诉称的经济损失与大庆联谊公司的虚假陈述行为之间没有因果关系。
被告申银证券公司除同意被告大庆联谊公司的答辩理由外，另辩称：原告起诉的虚假陈述事实，包括《招股说明书》、《上市公告》以及其他所谓“侵权事实”，均系大庆联谊公司所为，依法应由实施欺诈者自行承担责任。对大庆联谊公司的虚假陈述，申银证券公司既不明知也未参与。要求股票承销商和上市公司推荐人识别、查验和阻断这些制假造假现象，超出了申银证券公司的审核能力与义务。原告的诉讼请求应当驳回。
法庭主持了质证、认证。经质证，双方当事人均对对方出示证据的真实性无异议，但均不同意对方基于这些证据而主张的证明目的。此外，法庭根据被告申银证券公司的申请，向中国证券登记结算有限责任公司上海分公司调取了23名原告的大庆联谊公司股票交易记录，双方当事人均认可此交易记录。
经质证、认证，哈尔滨市中级人民法院查明：
被告大庆联谊公司正式成立于1998年5月6日。
1997年4月26日，联谊石化总厂以被告大庆联谊公司的名义发布《招股说明书》。该说明书中，载明被告申银证券公司是大庆联谊公司股票的上市推荐人和主承销商。1997年5月23日，代码为600065A的大庆联谊公司股票在上海证券交易所上市。1998年3月23日，联谊石化总厂又以大庆联谊公司的名义发布《1997年年报》。1999年4月21日，根据有关部门要求，大庆联谊公司在《中国证券报》上发布董事会公告，称该公司的《1997年年报》因涉嫌利润虚假、募集资金使用虚假等违法、违规行为，正在接受有关部门调查。2000年3月31日，中国证监会以证监罚字[2000]年第15、16号，作出《关于大庆联谊公司违反证券法规行为的处罚决定》和《关于申银证券公司违反证券法规行为的处罚决定》。处罚决定中，认定大庆联谊公司有欺诈上市、《1997年年报》内容虚假的行为；申银证券公司在为大庆联谊公司编制申报材料时，有将重大虚假信息编入申报材料的违规行为。上述处罚决定均在2000年4月27日的《中国证券报》上公布。
从1997年5月23日起，原告陈丽华等23人陆续购买了大庆联谊公司股票；至2000年4月27日前后，这些股票分别被陈丽华等23人卖出或持有。因购买大庆联谊公司股票，陈丽华等23人遭受的实际损失为425
388.30元，其中242 349.00元损失发生在欺诈上市虚假陈述行为实施期间。
另查明：从被告大庆联谊公司《1997年年报》虚假行为被披露的1999年4月21日起，大庆联谊公司股票累计成交量达到可流通部分100%的日期是同年6月21日，其间每个交易日收盘价的平均价格为9.65元；从大庆联谊公司上市虚假行为被披露的2000年4月27日起，大庆联谊公司股票累计成交量达到可流通部分100%的日期是同年6月23日，其间每个交易日收盘价的平均价格为13.50元。上海证券交易所股票交易的佣金和印花税，分别为3.5‰、4‰。
本案争议焦点是：1.大庆联谊公司应否对联谊石化总厂以其名义实施的虚假陈述行为承担民事责任？2.原告的股票交易损失与虚假陈述行为之间是否存在因果关系？3.申银证券公司应否对虚假陈述行为承担连带责任？4.原告的经济损失如何确定？5.原告向法院主张权利，是否超过诉讼时效期间？
哈尔滨市中级人民法院认为：
本案是因《中华人民共和国证券法》（以下简称证券法）施行前实施的证券虚假陈述行为引发的侵权纠纷，审理本案应当适用1993年4月22日以国务院第112号令发布的《股票发行与交易管理暂行条例》（以下简称《股票管理暂行条例》）和最高人民法院《关于审理证券市场因虚假陈述引发的民事赔偿案件的若干规定》（以下简称《证券赔偿案件规定》）。
关于第一点争议。《招股说明书》、《上市公报》和《1997年年报》，都是联谊石化总厂以被告大庆联谊公司名义发布的。这些行为已被中国证监会依照《股票管理暂行条例》的规定认定为虚假陈述行为，并给予相应的处罚，本案各方当事人对此均无异议。《证券赔偿案件规定》第二十一条规定：“发起人、发行人或者上市公司对其虚假陈述给投资人造成的损失承担民事赔偿责任。”第二十二条第一款规定：“实际控制人操纵发行人或者上市公司违反证券法律规定，以发行人或者上市公司名义虚假陈述并给投资人造成损失的，可以由发行人或者上市公司承担赔偿责任。发行人或者上市公司承担赔偿责任后，可以向实际控制人追偿。”大庆联谊公司是上市公司和大庆联谊公司股票的发行人，大庆联谊公司的实际控制人联谊石化总厂以大庆联谊公司的名义虚假陈述，给原告陈丽华等23名投资人造成损失，陈丽华等人将大庆联谊公司列为本案被告，要求大庆联谊公司承担赔偿责任，并无不当。
关于第二点争议。《证券赔偿案件规定》第十八条规定：“投资人具有以下情形的，人民法院应当认定虚假陈述与损害结果之间存在因果关系：（一）投资人所投资的是与虚假陈述直接关联的证券；（二）投资人在虚假陈述实施日及以后，至揭露日或者更正日之前买入该证券；（三）投资人在虚假陈述揭露日或者更正日及以后，因卖出该证券发生亏损，或者因持续持有该证券而产生亏损。”原告陈丽华等23人购买了与虚假陈述直接关联的大庆联谊公司股票并因此而遭受了实际损失，应当认定大庆联谊公司的虚假陈述行为与陈丽华等人遭受的损失之间存在因果关系。大庆联谊公司所举证据不足以否认这种因果关系，关于不存在因果关系的主张不予采纳。
关于第三点争议。《股票管理暂行条例》第二十一条规定：“证券经营机构承销股票，应当对招股说明书和其他有关宣传材料的真实性、准确性、完整性进行核查；发现含有虚假、严重误导性陈述或者重大遗漏的，不得发出要约邀请或者要约；已经发出的，应当立即停止销售活动，并采取相应的补救措施。”《证券赔偿案件规定》第二十七条规定：“证券承销商、证券上市推荐人或者专业中介服务机构，知道或者应当知道发行人或者上市公司虚假陈述，而不予纠正或者不出具保留意见的，构成共同侵权，对投资人的损失承担连带责任。”根据中国证监会《处罚决定书》的认定，本案存在两个虚假陈述行为，即欺诈上市虚假陈述和《1997年年报》虚假陈述。这两个虚假陈述行为中，欺诈上市虚假陈述与被告申银证券公司相关。作为专业证券经营机构，大庆联谊公司股票的上市推荐人和主承销商，申银证券公司应当知道，投资人依靠上市公司的《招股说明书》、《上市报告》等上市材料对二级市场投资情况进行判断；上市材料如果虚假，必将对股票交易市场产生恶劣影响，因此应当对招股说明书和其他有关宣传材料的真实性、准确性、完整性进行核查。申银证券公司编制被告大庆联谊公司的上市文件时，未经认真审核，致使申报材料含有重大虚假信息，已经构成共同侵权，应当对投资人的损失承担连带责任。
关于第四点争议。《证券赔偿案件规定》第三十条规定：“虚假陈述行为人在证券交易市场承担民事赔偿责任的范围，以投资人因虚假陈述而实际发生的损失为限。投资人实际损失包括：（一）投资差额损失；（二）投资差额损失部分的佣金和印花税。”第三十一条规定：“投资人在基准日及以前卖出证券的，其投资差额损失，以买入证券平均价格与实际卖出证券平均价格之差，乘以投资人所持证券数量计算。”第三十二条规定：“投资人在基准日之后卖出或者仍持有证券的，其投资差额损失，以买入证券平均价格与虚假陈述揭露日或者更正日起至基准日期间，每个交易日收盘价的平均价格之差，乘以投资人所持证券数量计算。”第二十条第一款规定：“本规定所指的虚假陈述实施日，是指作出虚假陈述或者发生虚假陈述之日。”第二十条第二款规定：“虚假陈述揭露日，是指虚假陈述在全国范围发行或者播放的报刊、电台、电视台等媒体上，首次被公开揭露之日。”第三十三条规定：“投资差额损失计算的基准日，是指虚假陈述揭露或者更正后，为将投资人应获赔偿限定在虚假陈述所造成的损失范围内，确定损失计算的合理期间而规定的截止日期。基准日分别按下列情况确定：（一）揭露日或者更正日起，至被虚假陈述影响的证券累计成交量达到其可流通部分100％之日。但通过大宗交易协议转让的证券成交量不予计算。（二）按前项规定在开庭审理前尚不能确定的，则以揭露日或者更正日后第30个交易日为基准日。（三）已经退出证券交易市场的，以摘牌日前一交易日为基准日。（四）已经停止证券交易的，可以停牌日前一交易日为基准日；恢复交易的，可以本条第（一）项规定确定基准日。”
被告大庆联谊公司实施了欺诈上市虚假陈述和《1997年年报》虚假陈述，前者表现在1997年4月26日公布的《招股说明书》和《上市公告》中，后者表现在1998年3月23日公布的《1997年年报》。因此，两个虚假陈述行为的实施日分别为1997年4月26日、1998年3月23日。1999年4月21日，大庆联谊公司首次在《中国证券报》上对该公司《1997年年报》涉嫌虚假的问题进行了公告，应当确认此日为《1997年年报》虚假陈述行为的揭露日。2000年4月27日，《中国证券报》上公布了中国证监会对大庆联谊公司虚假陈述行为作出处罚的决定，应当确认此日为欺诈上市虚假陈述行为首次被披露日。自上述两个虚假陈述行为被揭露日起，至大庆联谊公司股票累计成交量达到可流通部分100%的日期，分别为1999年6月21日、2000年6月23日，这是确定两个虚假陈述行为损失赔偿的基准日。
现已查明，前一个基准日的大庆联谊公司股票交易平均价格为9.65元，后一个基准日的平均价格为13.50元，而股票交易的佣金和印花税分别按3.5‰、4‰计算。按此方法计算，在虚假陈述实施日以后至揭露日之前，原告陈丽华等23人购买大庆联谊公司股票，因卖出或持续持有该股票遭受的实际损失为425
388.30元。这笔损失与被告大庆联谊公司的虚假陈述行为存在因果关系，大庆联谊公司应当承担赔偿责任。其中在欺诈上市虚假陈述行为实施期间发生的242
349.00元损失，应当由被告申银证券公司承担连带责任。
关于第五点争议。根据《证券赔偿案件规定》第五条第一款第（一）项的规定，投资人对虚假陈述行为人提起民事赔偿的诉讼时效期间，从中国证监会或其派出机构公布对虚假陈述行为人作出处罚决定之日起算。中国证监会对本案所涉虚假陈述行为人作出的处罚决定于2000年4月27日公布。自此日起算，原告陈丽华等23人提起本案侵权之诉时，并未超过法律规定的两年诉讼时效期间。
另，原告陈丽华等23人请求判令被告给付诉讼成本费用，该主张没有法律依据，不予支持。
据此，哈尔滨市中级人民法院于2004年8月19日判决：
一、被告大庆联谊公司于本判决生效之日起10日内赔偿原告陈丽华等23人实际损失425
388.30元（每人具体赔偿金额详见附表，本文略）；
二、被告申银证券公司对上述实际损失中的242 349.00元承担连带赔偿责任。
案件受理费14 610.63元，由原告陈丽华等23人负担5719.81元，被告大庆联谊公司负担8890.82元。
一审宣判后，大庆联谊公司和申银证券公司不服，分别向黑龙江省高级人民法院提出上诉。
大庆联谊公司的上诉理由是：1.《证券赔偿案件规定》是根据《中华人民共和国民法通则》（以下简称民法通则）、证券法、《中华人民共和国公司法》（以下简称公司法）以及《中华人民共和国民事诉讼法》（以下简称民事诉讼法）等法律制定的司法解释，其中的证券法于1999年7月1日起才施行。本案所涉虚假陈述行为，一个在1997年4月26日实施，一个在1998年3月23日实施，均早于证券法施行之日。在证券法施行前用于规范证券市场的《股票管理暂行条例》，是国务院证券委员会发布的行政规章，不具有行政法规效力，这个条例从证券法施行之日起已经作废。中国证监会根据《股票管理暂行条例》的规定，已经对本案所涉虚假陈述的责任人进行了处罚。原判令与虚假陈述行为无关的上诉人承担证券法规定的赔偿责任，上诉人在承担了这个赔偿责任后，必然要再向实际控制人（也就是虚假陈述的责任人）追偿。这对已经接受了处罚的虚假陈述责任人来说，是重复的、追加的民事处罚。故原审既依据已经废止的《股票管理暂行条例》、又引用根据证券法制定的司法解释来判决上诉人承担赔偿责任，是适用法律不当，应当免除上诉人的民事赔偿责任。2.在原审中，上诉人举出其他法院对类似案件的判决以及K线图等大量证据，用以证明揭露日之前的股票市场价格未受虚假陈述行为的影响，投资者在二级市场的获利或损失均与上诉人未披露的信息和募集的资金无关，被上诉人的损失是其在二级市场的投机行为造成的，虚假陈述行为与被上诉人的损失之间不存在因果关系。原判虽然将有无因果关系列为争议焦点之一，但无视上诉人所举的大量证据，以证据不足为由，仍然作出被上诉人损失与虚假陈述行为之间存在因果关系的判断。至于证据充分的标准和依据是什么，他们不做说明，这种做法不符合审理和认定因果关系的诉讼程序规则。3.原判认定《1997年年报》虚假陈述的揭露日为1999年4月21日。既然这个日期是揭露日，那么所有投资者自该日起都应当知道虚假陈述行为已经发生。根据民法通则的规定，被上诉人在2001年4月21日以后对《1997年年报》虚假陈述提起诉讼，显然超过了诉讼时效期间。原判不采纳上诉人关于超过诉讼时效的观点，但不说明自己的理由。4.原判认定联谊石化总厂是本案两个虚假陈述行为的实施者和上诉人的实际控制人。虚假陈述行为实施者和上市公司的实际控制人，是两个不同的概念，其诉讼权利义务及赔偿责任承担应有明显区别。原判没有说明这两者之间的区别。5.对投资人已卖出的股票，应当按先进先出原则计算买入均价。而本案有些被上诉人的股票买入均价超过最高买入价，甚至超过股票历史最高价，明显与事实不符。此外，股民利息损失不应由上诉人赔偿。原判认定的赔偿数额有误。请求二审撤销原判，改判驳回被上诉人的诉讼请求，由被上诉人负担一、二审诉讼费。
申银证券公司的上诉理由是：1.上诉人制作的《招股说明书》仅针对一级市场，又被不断披露的信息所覆盖，被上诉人在二级市场不断地以投机为目的进行股票买卖，原审判决对此未涉及，对上诉人显然不公。2.上诉人不是重大虚假信息的发布主体，信息的真假系法律事实，此事实的出现并不依赖上诉人是否认真审核，原审判决认定上诉人“未经认真核查，致使申报材料含有重大虚假信息”不当。3.原审判决将本应由会计师事务所承担的责任也一并判由上诉人承担不公。除此以外，同意大庆联谊公司的其他上诉理由。请求二审撤销原判，改判驳回被上诉人的诉讼请求，由被上诉人负担一、二审诉讼费。
被上诉人陈丽华等人辩称：1.《股票管理暂行条例》是国务院发布的行政法规，不是行政规章，至今未被废止。原审判决适用法律并无不当。2.本案不存在系统风险导致股价随大盘波动的情形，上诉人没有提供存在系统风险的有力证据。根据《证券赔偿案件规定》第十八条的规定，只要投资人符合该条规定的情形，应当认定虚假陈述行为与投资人损失之间具有因果关系。3.本案诉讼时效期间起算日为中国证监会对大庆联谊公司作出行政处罚公布之日即2000年4月27日，投资人起诉没有超过诉讼时效期间。4.《招股说明书》不仅是一级市场，也是二级市场投资人投资的重要依据。被上诉人投机是证券市场的正常交易行为，应受法律保护。申银证券公司虽然不是《招股说明书》的发布主体，但因《招股说明书》由其制作、审核并签字，其是责任主体。申报材料含有重大虚假信息，申银证券公司应当承担赔偿责任。
二审庭审中，上诉人大庆联谊公司提交以下新的证据：
1.哈尔滨市中级人民法院（2003）哈民三初字第403号民事调解书，即原告严伟虹与被告联谊石化总厂达成调解协议；
2.2004年8月4日《上海证券报》刊登的《股民败诉ST渤海案皆因“系统风险”以及山东省济南市中级人民法院（2002）济民二初字第12号民事判决书，内容为判决驳回原告张鹤诉银座渤海集团股份有限公司虚假陈述民事赔偿诉讼请求案；
3.大庆联谊公司股票在1999年4月20日至1999年6月21日的K线图。
大庆联谊公司提交上述证据用以证明：证券市场存在系统风险，投资人的损失是系统风险所致，与大庆联谊公司的虚假陈述无关，应当追加联谊石化总厂为本案被告。
被上诉人对上诉人提交证据的真实性无异议，但认为民事调解书的原告选择了调解权利，与本案无关，对上诉人的主张无证明力。
黑龙江省高级人民法院经审理，确认了一审查明的事实。
二审应解决的争议焦点是：1．关于本案法律适用的问题；2.关于是否存在系统风险的问题；3.关于是否让申银证券公司承担了会计师事务所审核责任的问题；4.关于虚假陈述行为人与上市公司实际控制人的责任问题；5.关于诉讼时效期间的起算问题；6.关于损失数额的计算问题。
黑龙江省高级人民法院认为：
关于第一点。作为司法解释，《证券赔偿案件规定》制定的依据和解释的对象，既包括证券法，也包括民法通则和公司法等法律。本案所涉虚假陈述行为虽然发生于证券法施行前，不能依照证券法追究行为人的责任，但任何民事行为均须遵循民法通则确立的诚实信用原则，遵守法律、行政法规以及相关行业规则确定的义务，否则就应依据民法通则和相关法律、行政法规的规定承担民事责任。《股票管理暂行条例》是国务院颁布的旨在监管证券市场的行政法规，其中不仅明确规定了证券发行人、上市公司和承销商等证券市场主体在证券市场中的信息披露义务，规定了对虚假陈述行为的行政处罚，而且还规定了虚假陈述行为人应当承担民事赔偿责任。该行政法规及相关行政规章、行业规则，是确定当事人是否违反民法通则诚实信用原则并构成侵权的具体标准。本案所涉虚假陈述行为，发生于《股票管理暂行条例》颁布施行之后，中国证监会依据该条例对虚假陈述行为作出认定和处罚，原判也将该条例作为法律依据，并根据《证券赔偿案件规定》作出裁判，并无不当。上诉人大庆联谊公司称原判以证券法为依据来确定行为人的赔偿责任，经核对原判文本，并无此事，这是大庆联谊公司对原判的误读。大庆联谊公司又称《股票管理暂行条例》不具有行政法规效力、已经废止，该理由没有任何法律依据。如前所述，《股票管理暂行条例》对虚假陈述行为人，不仅规定应予行政处罚，还规定应承担民事赔偿责任，而且民法通则第一百一十条也有“时承担民事责任的公民、法人需要追究行政责任的，应当追究行政责任”的规定。行政责任与民事责任是两种不同的法律责任，不存在重复或追加处罚的问题。大庆联谊公司因虚假陈述行为被中国证监会予以行政处罚，不影响其对因给投资者造成的损失承担民事赔偿责任。大庆联谊公司称原判令其承担民事责任属于重复处罚，对其于证券法生效前实施的虚假陈述行为应免除民事赔偿责任的上诉理由，不能成立。
关于第二点。《证券赔偿案件规定》第十九条第（四）项规定，被告举证证明原告的损失或者部分损失是由证券市场系统风险等其他因素所导致的，人民法院应当认定虚假陈述与损害结果之间不存在因果关系。此条虽将系统风险作为免除民事责任的条件之一，但对系统风险这一概念未作明确定义，双方当事人也对系统风险有不同的理解，故应依据通常理解确定系统风险的含义。证券业通常理解，系统风险是指对证券市场产生普遍影响的风险因素，其特征在于系统风险因共同因素所引发，对证券市场所有的股票价格均产生影响，这种影响为个别企业或行业所不能控制，投资人亦无法通过分散投资加以消除。上诉人大庆联谊公司上诉认为，原判未考虑系统风险对造成被上诉人损失的影响，并为此提交了相关股票价格和上证指数变动等证据支持自己的这一主张。大庆联谊公司既然提出这一主张，首先应当举证证明造成系统风险的事由存在，其次应当证明该事由对股票市场产生了重大影响，引起全部股票价格大幅度涨跌，导致了系统风险发生。但纵观大庆联谊公司向一审和二审法院提交的所有证据，并不能证明1999年4月21日至2000年4月27日期间，证券市场存在着足以影响所有股票价格下跌的合理事由，更不能证明该事由与股市价格波动的逻辑关系。对虚假陈述行为和所谓系统风险如何影响股价变动以及各自影响的程度，大庆联谊公司也没有提出具体的区分判断标准和有说服力的理由。经考查，1999年4月21日至2000年4月27日期间，股票市场的大盘走势图反映股票交易比较平稳，上证综合指数并未发生大幅度下跌。在此期间，大庆联谊公司欺诈上市虚假陈述行为持续影响着股票价格，股民在信息不对称的情况下继续投资购买大庆联谊公司股票，由此形成的投资损失，当然与虚假陈述行为之间存在因果关系。至于大庆联谊公司在二审提交的其他法院关于虚假陈述侵权赔偿案民事判决，不仅因该判决尚未发生法律效力，而且因该案投资人股票交易时间段、虚假陈述行为对投资人影响程度均与本案不同，不能作为处理本案的依据。由于大庆联谊公司提交的证据不能证明系统风险确实存在，原判以证据不足为由，否决大庆联谊公司关于存在系统风险，应当免除赔偿责任的抗辩主张，并无不当。
关于第三点。上诉人申银证券公司上诉认为，对《招股说明书》进行审核是会计师事务所的职责，其无能力承担此项义务；况且《招股说明书》仅针对一级市场并不断被后续披露的信息所覆盖，投资人在二级市场是以投机为目的进行股票买卖，不是根据《招股说明书》介绍的情况进行投资，因此主张不应由其对虚假陈述承担共同侵权的连带责任。
根据《证券赔偿案件规定》，对发行人或者上市公司的上市文件，证券承销商、证券上市推荐人或者专业中介服务机构都有责任审核，都可能对发行人或者上市公司的虚假陈述行为承担连带责任。以上述主体为被告的诉讼，属于普通共同诉讼。在一审诉讼中，原告基于其诉讼利益的判断而选择其中某些人当被告，不违反法律规定。法院根据原告的请求确定诉讼参加人，是尊重当事人的诉讼选择权，并无不当。在虚假陈述行为被完全揭露前，即使其他信息披露义务人后续披露了其他虚假信息，也不能排除投资人对在先披露信息的信赖。投资人进行股票交易以期获取收益，是合法行为；投资人的投资动机，并非法定的免除损害赔偿责任的条件。虚假陈述行为给从事合法股票交易的投资人造成损失，不能因投资人交易动机的不同而免除虚假陈述行为人的赔偿责任。上诉人申银证券公司作为证券经营机构，推荐并承销上诉人大庆联谊公司股票发行，是法定的信息披露义务人。申银证券公司未尽到法律所要求的勤勉、审慎注意义务，没有对源于大庆联谊公司的虚假陈述予以纠正或出具保留意见，而且自己还编制和出具了虚假陈述文件。同时，申银证券公司没有向法院证明其存在法定的免责事由。申银证券公司违法行为的内容和性质，已被中国证监会的行政处罚予以确认。申银证券公司就原判认定其“未经认真审核、致使申报材料含有重大虚假信息”提出的异议，与已经生效的行政处罚相矛盾，明显不能成立。原判依据《证券赔偿案件规定》第二十七条的规定，判令申银证券公司承担共同侵权的连带责任，并无不当。申银证券公司关于其不应承担责任的上诉理由，没有法律依据和事实根据，不予支持。
关于第四点。经查，本案所涉虚假陈述行为，确实是在上诉人大庆联谊公司成立之前，由联谊石化总厂以大庆联谊公司名义实施的。大庆联谊公司是联谊石化总厂以其部分下属企业组建成立的公司。因此，联谊石化总厂不仅是虚假陈述行为人，也是上市公司大庆联谊公司的实际控制人。被上诉人在一审中仅起诉了大庆联谊公司和上诉人申银证券公司，未起诉联谊石化总厂，故联谊石化总厂不是必须参加诉讼的主体。作为上市公司，大庆联谊公司可以在先行承担赔偿责任后，再根据《证券赔偿案件规定》第二十二条的规定向实际控制人联谊石化总厂追偿。大庆联谊公司与其实际控制人联谊石化总厂之间的责任分配或转承关系，属另一法律关系，不在本案审理范围。
关于第五点。尽管上诉人大庆联谊公司的《1997年年报》虚假陈述行为于1999年4月21日披露，尽管在原审诉讼中部分被上诉人也称其于该日知道虚假陈述行为发生，但是根据《证券赔偿案件规定》第六条的规定，投资人以自己受到虚假陈述侵害为由，对虚假陈述行为人提起民事赔偿诉讼的，必须以有关机关的行政处罚决定或者人民法院的刑事裁判文书为依据，人民法院才应当受理。在有关机关的行政处罚决定或者人民法院的刑事裁判文书没有作出和公布前，投资人无从提起诉讼。所以，如果按民法通则第一百三十七条的规定，“从知道或者应当知道权利被侵害时起计算”投资人提起的虚假陈述侵权损害赔偿案的诉讼时效期间，对投资人是不公平的。原判根据《证券赔偿案件规定》第五条第一款第（一）项的规定，从中国证监会对虚假陈述行为人作出的处罚决定公布之日计算本案的诉讼时效期间，是正确的。大庆联谊公司此项上诉主张没有依据，不予支持。
关于第六点。经查，原判计算买入证券平均价格的方法是：以实际交易每次买进价格和数量计算出投资人买进股票总成本，再减去投资人此间所有已卖出股票收回资金的余额，除以投资人尚持有的股票数量。按此种方法计算，不排除个别投资人买入证券的平均价格高于股票历史最高价的可能。这只是计算投资人投资差额损失过程中可能出现的一个数据，而且这个数据在很大程度上取决于投资人在揭露日前后的股票持有量。这个数据不等于投资人购买股票时实际成交的价格，其与大庆联谊公司股票历史最高价之间没有可比性。由于证券交易的复杂性，目前用于计算投资人投资差额损失的方法有多种。只要这些方法符合《证券赔偿案件规定》第三十条、第三十一条、第三十二条确定的原则，结果公平合理，使用哪种方法计算，就在法院的自由裁量范围之内。原判采用的计算方法符合《证券赔偿案件规定》，有利于保护多数投资人的利益，故不予变更。上诉人大庆联谊公司关于原判确定的损失赔偿数额不当的上诉理由，不予采纳，同时由于《证券赔偿案件规定》第三十条第二款已明确规定，虚假陈述行为人在证券交易市场承担民事赔偿责任的范围包括利息，即所涉资金利息自买入至卖出证券日或者基准日，按银行同期活期存款利率计算，故对大庆联谊公司不同意给付投资差额损失部分利息的上诉主张，也不予支持。
据此，黑龙江省高级人民法院依照民事诉讼法第一百五十三条第一款第（一）项规定，于2004年12月21日判决：
驳回上诉，维持原判。
|
|
Chen Lihua
and Other 22 Investors v. Daqing Lianyi Company & Shenyin
Securities Company |
|
〖Subject〗 |
CIVIL DISPUTE |
|
〖1st Inst date〗 |
08-19-2004 |
|
〖1st Inst Court〗 |
THE INTERMEDIATE PEOPLE'S COURT OF HARBIN MUNICIPALITY,
HEILONGJING PROVINCE |
|
〖2nd Inst date〗 |
12-21-2004 |
|
〖2nd Inst Court〗 |
THE HIGHER PEOPLE'S COURT OF HEILONGJIONG PROVINCE
|
Chen Lihua and Other 22 Investors v. Daqing Lianyi Company &
Shenyin Securities Company
(Case of Dispute over Compensation for Misrepresentation
Infringement)
Plaintiff: Chen Lihua and other 22 investors (the name list
thereof is omitted).
Defendant: Daqing Lianyi Petro-chemical Co., Ltd., situated
at Daqing City, Heilongjiang Province.
Legal Representative: Li Xiujun, chairman of the board of
directors of this company.
Defendant: Shenyin & Wan’guo Securities Co., Ltd., situated
in Changshu Road, Shanghai Municipality.
Legal Representative: Wang Mingquan, chairman of the board
of directors of this company.
Chen Lihua and other 22 investors (hereinafter referred to
as Chen Lihua et al) lodged a lawsuit before the Harbin
Intermediate People’s Court of Heilongjiang Province against
Daqing Lianyi Petro-chemical Co., Ltd. (hereinafter referred
to as Daqing Lianyi) and Shenyin & Wan’guo Securities Co.,
Ltd. (hereinafter referred to as Shenyin Securities) because
they believed that the misrepresentations made by Daqing
Lianyi and Shenyin Securities caused losses to their stock
investment and injured their civil rights and interests.
Chen Lihua et al complained that: Daqing Lianyi and Shenyin
Securities had been punished by the China Securities
Regulatory Commission (hereinafter referred to as the CSRC)
due to their misrepresentations made in the securities
market, which could be verified by the punishment decisions
of the CSRC, and had also been admitted by Daqing Lianyi in
the announcement of the board of directors on April 21,
1999. The misrepresentations made by Daqing Lianyi and
Shenyin Securities caused losses to Chen Lihua et al in
their investment in Daqing Lianyi’s stocks, so Daqing Lianyi
and Shenyin Securities should assume the compensation
ability for the losses incurred therefrom. Chen Lihua et al
pleaded the court to order Daqing Lianyi to compensate
960,063.15 yuan of economic losses to them and order Shenyin
Securities to assume joint and several liabilities for their
losses; and to order Daqing Lianyi and Shenyin Securities to
assume the case acceptance fees and litigation costs for
this case.
Chen Lihua et al submitted the following evidences:
1. identification certificates, which were used to prove the
lawful litigation capacity of Chen Lihua et al;
2. the Prospectus of Daqing Lianyi published on China
Securities Journal on April 26, 1997; the Listing
Announcement of Daqing Lianyi published on Securities Times
on May 20, 1997; and the Annual Report 1997 of Daqing Lianyi
published on China Securities Journal on March 23, 1998,
which were used to prove the facts of misrepresentations;
3. the Punishment Decision No. 15 and 16 [2000] of the CSRC
as made on March 31, 2000, three announcements of the board
of directors made by Daqing Lianyi on April 20, 1999,
November 26, 1999 and April 26, 2000, respectively, which
were used to prove that the competent administrative
department had given punishments for the misrepresentations
made by Daqing Lianyi and Shenyin Securities, and Daqing
Lianyi did not deny the fact of its misrepresentations;
4. the stock trading record issued by Huangpu Agency of
Shanghai Securities Central Clearing and Registration
Corporation, the comprehensive explanations on the
calculation method for the losses of Chen Lihua et al, and
the chart on the calculation of economic losses, which were
used to prove the economic losses of Chen Lihua et al and
the calculation method for the aforesaid losses; and
5. the chart on the calculation of mailing costs, inquiry
charges, travel fees, communications fees, materials costs,
litigation costs, labor costs and other miscellaneous
expenses, which were used to prove the litigation costs as
claimed by Chen Lihua et al.
Daqing Lianyi defended that: 1. The misrepresentations
involved in this case were made by the Petro-chemical
General Plant of Daqing Lianyi (hereinafter referred to as
Petro-chemical General Plant) in the name of Daqing Lianyi;
Daqing Lianyi had not obtained its legal person status and
business license until May 6, 1998, so it should not assume
the civil liability for any illegal act committed by Petro-chemical
General Plant; 2. The punishment decisions of the CSRC were
published on April 27, 2000, that is to say, April 27, 2000
was the date on which the misrepresentations of Daqing
Lianyi were revealed. The announcement of the board of
directors of Daqing Lianyi on April 20, 1999 was only the
risk presentation to investors. Therefore, it was not in
line with the legal provisions that Chen Lihua et al
regarded the aforesaid date as the date of revealing the
misrepresentations of Daqing Lianyi; 3. The trading losses
of Chen Lihua et al from investing in the stocks of Daqing
Lianyi were mainly caused by the industrial sector-featured
risks and other various factors that would affect the
fluctuation of stock prices, and had no obvious causal
relationship with the revealed misrepresentations of Daqing
Lianyi; 4. Since Chen Lihua et al claimed that they had
known the misrepresentations from the announcement of the
board of directors of Daqing Lianyi on April 20, 1999, and
the two-year limitation of action prescribed by the law had
passed when they instituted a lawsuit for tort, so their
claims should not be supported. And the claims of Chen Lihua
et al should be rejected.
Daqing Lianyi submitted the following evidences:
1. a Certification issued by Petro-chemical General Plant, a
list of directors of Daqing Lianyi, and the Prospectus,
which were used to prove that the misrepresentations were
made by Petro-chemical General Plant, the actual controller
of Daqing Lianyi, and Petro-chemical General Plant should
assume the legal liability for misrepresentations;
2. the Enterprise Legal Person Business License, which was
used to prove that Daqing Lianyi was legally established on
May 6, 1998, so Daqing Lianyi should assume no liability for
all the acts committed by Petro-chemical General Plant in
the name of the former;
3. the Punishment Decision No. 16 [2000] of the CSRC, which
was used to prove that the misrepresentations were made by
several entities and individuals, if Chen Lihua et al gave
up the right to claim against other participants in the
misrepresentations, it would be impossible for the court to
find out many of the facts regarding this case;
4. the Bill of Complaint put forward by the shareholder Yan
Weihong, who was involved in another case, which was used to
prove that the shareholders did not really knew the
fraudulent listing of Daqing Lianyi until April 27, 2000, so
the April 27, 2000 should be determined as the day when the
misrepresentations of Daqing Lianyi were revealed; and
5. the Composite Index of Shanghai Stock Exchange, K-line
Charts of stocks of Daqing Lianyi, Sinopec Qilu Co., Ltd.
and other seven listed companies, which were used to prove
that the economic losses claimed by Chen Lihua et al had no
causal relationship with the misrepresentations of Daqing
Lianyi.
Except for agreeing with all the defenses of Daqing Lianyi,
Shenyin Securities additionally argued that: the facts about
the misrepresentations complained by Chen Lihua et al,
including the Prospectus, the Listing Announcement and other
so-called “infringement facts”, were all made by Daqing
Lianyi, and the subject that carried out frauds should
assume its own liabilities. Shenyin Securities neither knew
nor participated in the misrepresentations of Daqing Lianyi.
It was beyond the examination ability and obligation of
Shenyin Securities to request the stock underwriter or
recommender of a listed company to identify, check and deter
such frauds. Therefore, the claims of Chen Lihua et al
should be rejected.
The court presided over the cross-examinations and
attestations. Upon the cross-examination, both parties had
no objection to the authenticity of the evidences put
forward by the opposite party, but did not consent to the
claims of the opposite party based on these evidences. In
addition, upon the strength of the application of Shenyin
Securities, the court obtained the stock trading record of
Daqing Lianyi about the transactions of Chen Lihua et al
from Shanghai Branch of China Depository & Clearing Co.,
Ltd., and both parties recognized the said trading record.
Upon cross-examinations and attestations, the Harbin
Intermediate People’s Court found that:
Daqing Lianyi was formally established on May 6, 1998.
On April 26, 1997, Petro-chemical General Plant issued the
Prospectus in the name of Daqing Lianyi. The Prospectus
indicated that Shenyin Securities was the listing
recommender and main underwriter of the stocks of Daqing
Lianyi. On May 23, 1997, the stocks of Daqing Lianyi with
the code of 600065A were listed in Shanghai Stock Exchange.
On March 23, 1998, Petro-chemical General Plant issued the
Annual Report 1977 still in the name of Daqing Lianyi. On
April 21, 1999, Daqing Lianyi issued an announcement of the
board of directors on China Securities Journal as required
by the relevant department, and claimed that its Annual
Report 1977 was being investigated by the relevant
department because it might involve false profits, illegal
use of raised capital or any other illegal or irregular act.
On March 31, 2000, the CSRC made the Punishment Decision on
the Securities Violation of Daqing Lianyi and the Punishment
Decision on the Securities Violation of Shenyin Securities
respectively through the Punishment Decisions No. 15 and 16
[2000] of the CSRC. In the aforesaid punishment decisions,
the CSRC verified that Daqing Lianyi realized its listing by
fraudulent means and gave false contents in the Annual
Report 1977, and Shenyin Securities had incorporated major
false information into declaration materials when it
formulated declaration materials for Daqing Lianyi. The
aforesaid punishment decisions had been published on the
China Securities Journal on April 27, 2000.
As of May 23, 1997, Chen Lihua et al continuously purchased
the stocks of Daqing Lianyi; and by April 27, 2000 or so,
these stocks were sold or held respectively by Chen Lihua et
al. Due to the purchase of Daqing Lianyi’s stocks, Chen
Lihua et al suffered an actual loss of 425,388.30 yuan, of
which, 242,349.00 yuan was lost while the misrepresentations
were made.
It was also found that: as of April 21, 1999 when the
misrepresentation involved in the Annual Report 1997 of
Daqing Lianyi was revealed, the date on which the
accumulative transaction amount of Daqing Lianyi’s stocks
reached 100% of the negotiable part was June 21, 1999, and
the average closing price of each trading day during the
aforesaid period was 9.65 yuan; as of April 27, 2000 when
the fraudulent listing of Daqing Lianyi was revealed, the
date on which the accumulative transaction amount of Daqing
Lianyi’s stocks reached 100% of the negotiable part was June
23, 2000, and the average closing price of each trading day
during the aforesaid period was 13.5 yuan. The commissions
and stamp taxes of Shanghai Stock Exchange for the stock
trading are 3.5‰ and 4‰ respectively.
The focuses of dispute of this case were: 1. Whether Daqing
Lianyi should assume civil liabilities for the
misrepresentations made by Petro-chemical General Plant in
the name of the former? 2. Whether there was a causal
relationship between the stock trading losses of Chen Lihua
et al and the misrepresentations? 3. Whether Shenyin
Securities should assume joint and several liabilities for
its misrepresentations? 4. How to determine the economic
losses of Chen Lihua et al? 5. Whether the limitation of
action had gone by when Chen Lihua et al claimed their
rights before the court?
Harbin Intermediate People’s Court held that:
This case was a dispute over misrepresentations made before
the implementation of the Securities Law of the People’s
Republic of China (hereinafter referred to as the Securities
Law), so the trial of this case should be governed by the
Interim Regulation on the Administration of the Issuance and
Trading of Stocks promulgated by Order No. 112 of the State
Council on April 22, 1993 (hereinafter referred to as the
Regulation on Stock Issuance and Trading) and Some
Provisions of the Supreme People’s Court on Trying Cases of
Civil Compensation Arising from Misrepresentation in the
Securities Market (hereinafter referred to as the Provisions
on the Cases of Securities Compensation).
As to the first focus of dispute: The Prospectus, the
Listing Announcement and the Annual Report 1997 were
published by Petro-chemical General Plant in the name of
Daqing Lianyi, which had been affirmed as misrepresentations
by the CSRC according to the Regulation on Stock Issuance
and Trading, and the CSRC had given corresponding
punishments, and none of the parties involved in this case
had any objection to it. Article 21 of the Provisions on the
Cases of Securities Compensation prescribes that: “The
initiators, issuers or listed companies shall bear the
liability of civil compensation for the losses caused by
their misrepresentations to the investors.” Paragraph 1 of
Article 22 prescribes that: “Where an actual controller rigs
the issuer or listed company to violate the securities laws
by making misrepresentations in the name of the issuer or
listed company and thus causing losses to the investors, the
liability of compensation may be borne by the issuer or
listed company. The issuer or listed company may, after
bearing the liability of compensation, recourse the
compensation from the actual controller.” Daqing Lianyi was
a listed company as well as the issuer of Daqing Lianyi’s
stocks, and Petro-chemical General Plant, the actual
controller of Daqing Lianyi, made misrepresentations in the
name of the latter and caused losses to Chen Lihua et al, so
it was proper for Chen Lihua et al to list Daqing Lianyi as
the defendant of this case and to request it to assume the
liability of compensation.
As to the second focus of dispute: Article 18 of the
Provisions on the Cases of Securities Compensation
prescribes that: “Where an investor is under any of the
following circumstances, the people’s court shall ascertain
that there is a causal relationship between the
misrepresentation and the damage consequence: (1) what the
investor invests in are the securities directly related to
the misrepresentation; (2) the investor buys the securities
on the day when the misrepresentation was made or
thereafter, until the date of disclosure or correction; (3)
the investor suffers a loss on the date of disclosure or
correction of the misrepresentation or thereafter, due to
his selling or continuing holding of the securities.” Chen
Lihua et al purchased Daqing Lianyi’s stocks that directly
related to the misrepresentations and thus suffered actual
losses, so it should be verified that there was a causal
relationship between the misrepresentations of Daqing Lianyi
and the losses of Chen Lihua et al. The evidences Daqing
Lianyi submitted were not sufficient for denying the said
casual relationship, therefore, the claim that the casual
relationship did not exist should not be adopted.
As to the third focus of dispute: Article 21 of the
Regulation on Stock Issuance and Trading prescribes that:
“To underwrite stocks, a securities operator should verify
the truthfulness, accuracy and completeness of the
prospectus and other related publicity materials. If the
documents are found to contain any false or seriously
misleading statement or major omission, it shall not send
out any offer or invitations to offer. If any offers has
been sent out, the stock selling shall be stopped
immediately and remedial measures shall be taken.” Article
27 of the Provisions on the Cases of Securities Compensation
prescribes that: “Where a securities underwriter, a
recommender for the listing of securities or a professional
intermediary service institution who knows or ought to know
the issuer’s or listed company’s misrepresentation, but has
failed to correct it or issue reserved opinions, it shall
constitute a joint tort, and he shall bear joint and several
liabilities for the losses caused to the investors.”
According to the Punishment Decisions of the CSRC, this case
involved two misrepresentations, namely, one
misrepresentation in the fraudulent listing and another
misrepresentation in the Annual Report 1997. The former
misrepresentation had something to do with Shenyin
Securities. As a professional securities operator, the
listing recommender and main underwriter of Daqing Lianyi’s
stocks, Shenyin Securities should know that the investors
would judge the investment conditions in the secondary
market on the basis of the Prospectus, the Listing
Announcement and other listing materials; and the listing
materials, if false, would cause adverse impacts upon the
stock trading market, therefore, Shenyin Securities should
check the authenticity, accuracy and integrity of the
prospectus and other relevant publicity materials. When
Shenyin Securities was formulating the listing documents for
Daqing Lianyi, it failed to seriously examine the listing
materials, which resulted in major false information in the
declaration materials and had instituted the joint tort, so
it should assume joint and several liabilities for the
investors’ losses.
As to the fourth focus of dispute: Article 30 of the
Provisions on the Cases of Securities Compensation
prescribes that: “The scope for a misrepresentation maker to
bear the liability of civil compensation in the securities
trading market shall be limited to the losses actually
caused to the investors due to the misrepresentation. The
actual losses of an investor shall include: (1) the
investment margin loss; and (2) commission and stamp tax for
the investment margin loss.” Article 31 prescribes that:
“Where an investor sells its securities on or before the
base day, his investment margin loss shall be calculated
with the margin between the average price for buying the
securities and that for actually selling the securities,
multiplied by the quantity of securities which the investor
holds.” Article 32 prescribes that: “Where an investor sells
or still holds any securities after the base day, his
investment margin loss shall be calculated with the margin
between the average price for buying the securities and that
of closing price on the transaction days during the period
from the date of disclosure or correction of the
misrepresentation to the base day, multiplied by the
quantity of securities which the investor holds.” Paragraph
1 of Article 20 prescribes that: “The day when the
misrepresentation is made as mentioned in these Provisions
shall refer to the date on which the misrepresentation is
made or occurs.” Paragraph 2 of Article 20 prescribes that:
“The date of disclosure of the misrepresentation shall refer
to the date on which the misrepresentation is first
disclosed publicly through such media as newspapers, radio
stations, television stations, etc. that are issued or
broadcasted around the whole country.” Article 33 prescribes
that: “The base day for calculating the investment margin
loss shall refer to the stipulated expiry date after the
misrepresentation is revealed or corrected, for the sake of
determining the reasonable period for calculating the loss
in order to limit the compensation to be received by the
investors within the scope of losses caused by the
misrepresentation. The base day shall be determined in view
of the following circumstances: (1) from the date of
disclosure or correction to the day when the accumulative
transaction amount of the securities affected by the
misrepresentation reaches 100% of the negotiable part,
provided that the transaction amount of the securities
transferred under bulk transaction agreement shall not be
calculated; (2) if the base day cannot be determined before
the opening of a court session in accordance with the
preceding paragraph, the 30th transaction day following the
date of disclosure or correction shall be regarded as the
base day; (3) if certain investors have withdrawn from the
securities trading market, the date of delisting before the
transaction day shall be regarded as the base day; (4) if
the securities trading has been suspended, the transaction
day before the suspension day may be regarded as the base
day; while if the trading is resumed, the base day may be
determined in accordance with Item (1) of this Article.”
Daqing Lianyi made the misrepresentations in the fraudulent
listing and in the Annual Report 1997, the former was
embodied in the Prospectus and the Listing Announcement
promulgated on April 26, 1997, and the latter was embodied
in the Annual Report 1997 promulgated on March 23, 1998.
Therefore, the aforesaid two misrepresentations were
respectively made on April 26, 1997 and March 23, 1998. On
April 21, 1999, Daqing Lianyi first made an announcement on
China Securities Journal concerning its frauds involved in
the Annual Report 1997, so the aforesaid day should be
verified as the day when the misrepresentation involved in
the Annual Report 1997 was revealed. On April 27, 2000,
China Securities Journal published the punishment decisions
of the CSRC on the misrepresentation of Daqing Lianyi, so
the aforesaid day should be verified as the day when the
misrepresentation in the fraudulent listing was first
revealed. As of the day when the aforesaid two
misrepresentations were revealed, the day when the
accumulative transaction amount of Daqing Lianyi’s stocks
reached 100% of the negotiable part was respectively June
21, 1999 and June 23, 2000, which was the base day for
determining the losses resulted from the aforesaid two
misrepresentations.
Now it had been found that the average trading price of
Daqing Lianyi’s stocks on the former base day was 9.65 yuan,
and the average price on the latter base day was 13.50 yuan,
and the rate of commission and stamp tax for the stock
trading were respectively 3.5‰ and 4‰. According to the
aforesaid method, after the misrepresentations were made and
before the misrepresentations were revealed, Chen Lihua et
al suffered an actual loss of 425,388.30 yuan from selling
or continuously holding Daqing Lianyi’s stocks since they
purchased the stocks. Since there was a causal relationship
between the aforesaid losses and the misrepresentations of
Daqing Lianyi, so Daqing Lianyi should assume the liability
of compensation. As to the 242,349.00 yuan of losses
incurred during the course when the misrepresentations were
made in the fraudulent listing, Shenyin Securities should
assume joint and several liabilities.
As to the fifth focus of dispute. Item (1) of Paragraph 1 of
Article 5 of the Provisions on the Cases of Securities
Compensation prescribes that the limitation of action for an
investor to claim against a misrepresentation maker for
civil compensation shall begin on the day when the CSRC or
its dispatched office announces the decision on penalty
imposed upon the misrepresentation maker. The decision of
the CSRC on penalty imposed upon the misrepresentation maker
involved in this case was published on April 27, 2000. If
calculated as of April 27, 2000, the two-year limitation of
action prescribed by the law had not gone by when Chen Lihua
et al instituted the infringement action for this case.
In addition, Chen Lihua et al pleaded to order Daqing Lianyi
and Shenyin Securities to pay litigation costs, however,
this claim was not based on any law and thus should not be
supported.
Based thereon, Harbin Intermediate People’s Court
adjudicated on August 19, 2004 as follows:
1. Daqing Lianyi should, within 10 days as of the
effectiveness of this judgment, compensate 425,388.30 yuan
of actual losses to Chen Lihua et al (see the annexed table
for the specific compensation amount for each person,
omittedherein); and
2. Shenyin Securities should assume joint and several
liabilities for the 242,349.00 yuan of the aforesaid actual
losses.
As to the 14,610.63 yuan of case acceptance fees, Chen Lihua
et al should assume 5,719.81 yuan, and Daqing Lianyi should
assume 8,890.82 yuan.
After the judgment of the first instance was announced, both
Daqing Lianyi and Shenyin Securities were not satisfied, and
both of them appealed to the Higher People’s Court of
Heilongjiang Province.
Daqing Lianyi filed the appeal for the reasons that: 1. The
Provisions on the Cases of Securities Compensation were the
judicial interpretations formulated according to the General
Principles of the Civil Law of the People’s Republic of
China (hereinafter referred to as the General Principles of
the Civil Law), the Securities Law, the Company Law of the
People’s Republic of China (hereinafter referred to as the
Company Law) and the Civil Procedure Law of the People’s
Republic of China (hereinafter referred to as the Civil
Procedure Law), of which the Securities Law had not come
into force until July 1, 1999. The misrepresentations
involved in this case were respectively made on April 26,
1997 and March 23, 1998, earlier than the effective date of
the Securities Law. The Regulation on Stock Issuance and
Trading, which was formulated for regulating the securities
market before the implementation of the Securities Law, was
an administrative rule promulgated by the Securities
Commission of the State Council, and thus had no
administrative legal force, and had been abolished as of the
date when the Securities Law came into force. The CSRC had
punished the parties held to be responsible for the
misrepresentations involved in this case according to the
Regulation on Stock Issuance and Trading. The original
judgment ordered Daqing Lianyi, which was irrelevant to the
misrepresentations, to assume the liability of compensation
prescribed in the Securities Law, however, after Daqing
Lianyi assumed the liability of compensation, it would
inevitably recourse the compensation against the actual
controller (namely, the party held to be responsible for
misrepresentations), which means a repeated and superadded
civil punishment for the party held to be responsible for
misrepresentations that had already been punished.
Therefore, it was an improper application of the law for the
court of original trial to adjudicate Daqing Lianyi to
assume the liability of compensation according to the
Regulation on Stock Issuance and Trading and the judicial
interpretations formulated pursuant to the Securities Law,
and the civil compensation liability of Daqing Lianyi should
be exempted. 2. In the original trial, Daqing Lianyi
submitted the judgment of another court for a similar case
and K-line Chart, etc. to prove that the market price of
stocks before the date of disclosure was not affected by the
misrepresentations and that the profits or losses of the
investors at the secondary level had nothing to do with the
information undisclosed or the capital raised by Daqing
Lianyi, the losses of Chen Lihua et al were caused by their
speculative acts at the secondary market, so there was no
causal relationship between the misrepresentations and the
losses of Chen Lihua et al. Although the original judgment
listed the causal relationship as one of focuses of dispute,
it disregarded the large amount of evidences submitted by
Daqing Lianyi and jumped to the judgment that there was a
causal relationship between the misrepresentations and the
losses of Chen Lihua et al for the sake of insufficient
evidences. As to the standards and basis for the sufficiency
of evidences, the court of the first instance did not offer
an explanation, which was not in line with the litigation
rules for verifying and determining the causal relationship.
3. The original judgment verified that the misrepresentation
in the Annual Report 1997 was revealed on April 21, 1999.
Since the aforesaid date was the date of disclosure, all the
investors should know the misrepresentation as of that day.
According to the General Principles of the Civil Law, since
Chen Lihua et al instituted a lawsuit for the
misrepresentation in the Annual Report 1997 after April 21,
2001, obviously, it was beyond the limitation of action. The
original judgment did not adopt the argument of Daqing
Lianyi that the limitation of action had passed nor did it
explain its own reasons. 4. The original judgment verified
that Petro-chemical General Plant was the maker of two
misrepresentations involved in this case as well as the
actual controller of Daqing Lianyi. The maker of
misrepresentations and the actual controller of a listed
company were two different concepts, so their litigation
rights and obligations as well as their liability of
compensation should be clearly distinguished. However, the
original judgment did not explain the difference between
them. 5. The average purchase price of the stocks that the
investors had sold should be calculated according to the
principle of “first-in, first-out”. However, in this case,
the average purchase price of stocks for some investors was
higher than the maximum buying price, even higher than the
historical highest price of the stocks, which was sharply
inconsistent with the fact. Furthermore, the shareholders’
losses from interests should not be compensated by Daqing
Lianyi. So the amount of compensation affirmed by the
original judgment was wrong. So Daqing Lianyi pleaded the
second instance to overrule the original judgment and reject
the claims of Chen Lihua et al, and to order Chen Lihua et
al to assume the litigation costs for the first and second
instances.
Shenyin Securities filed an appeal for the reasons that: 1.
The Prospectus formulated by Shenyin Securities was only
targeted to the primary market and was also covered by the
information incessantly disclosed thereafter, and Chen Lihua
et al continued to buy and sell stocks in the secondary
market for the purpose of speculation, however, the original
judgment did not touch upon it, which was obviously unfair
to Shenyin Securities. 2. Shenyin Securities was not the
subject that issued the major false information, and whether
the information was true or false was a legal fact and did
not relate to the serious or careless examination of Shenyin
Securities, so it was improper for the original judgment to
verify that Shenyin Securities “failed to carry out serious
examination and thus caused the major false information in
the declaration materials”. 3. The judgment of original
trial ordered Shenyin Securities to bear the liability that
should be assumed by the accounting firm. Except for the
aforesaid points, Shenyin Securities agreed with other
grounds of Daqing Lianyi for the appeal, and pleaded the
second instance to overrule the original judgment and reject
the claims of Chen Lihua et al, and to order Chen Lihua et
al to assume the litigation costs for the first and second
instances.
Chen Lihua et al defended that: 1. The Regulation on Stock
Issuance and Trading was an administrative regulation
promulgated by the State Council, and not a ministerial
rule, and had not been abolished so far. So the law was
correctly applied in the judgment of original trial. 2.
There was no sectoral risk involved in this case that would
cause the stock price to fluctuate with the large cap, and
Daqing Lianyi and Shenyin Securities did not provide
persuasive evidences to prove the existence of sectoral
risks. According to Article 18 of the Provisions on the
Cases of Securities Compensation, if an investor is under
any of the circumstances prescribed in that Article, it
should be verified that there is a causal relationship
between the misrepresentation and the losses of investors.
3. The limitation of action in this case should begin as of
the day when the CSRC announced the administrative penalty
on Daqing Lianyi, namely, April 27, 2000, so the investors
have instituted this lawsuit within the limitation of
action. 4. The Prospectus is an important basis for
investment not only in the primary market but also in the
second market. Chen Lihua et al speculated in normal
transactions in the securities market, so their investment
should be protected by the law. Shenyin Securities was not
the issuer of the Prospectus, but it had formulated,
examined and affixed its name on the Prospectus, if there
was major false information in the declaration materials,
Shenyin Securities should assume the liability of
compensation.
During the court trial in the second instance, Daqing Lianyi
submitted the following new evidences:
1. the Civil Mediation No. 403 [2003] of the Third Civil
Tribunal of the Harbin Intermediate People’s Court, which is
a mediation reached between Yan Weihong and Petro-chemical
General Plant;
2. the Shareholders Losing the Case concerning ST Bohai
because of “sectoral risks” published in Shanghai Securities
News on August 4, 2004 and the Civil Judgment No. 12 [2002]
of the Second Civil Tribunal of the Jinan Intermediate
People’s Court, in which the case of civil compensation
between Zhang He v. Yinzuo Group Co., Ltd. was rejected
through judgment; and
3. the K-line Chart of Daqing Lianyi’s stocks from April 20,
1999 to June 21, 1999.
Daqing Lianyi submitted the aforesaid evidences to prove
that: there was a sectoral risk in the securities market,
and the losses of investors were caused by the sectoral risk
and had nothing to do with the misrepresentations of Daqing
Lianyi, so Petro-chemical General Plant should be added as a
defendant of this case.
Chen Lihua et al had no objection to the authenticity of the
evidences Daqing Lianyi submitted, but held that, since the
plaintiff in the said Mediation Paper chose to exercise its
mediation right, which had nothing to do with this case and
had no force of proof on the claims of Daqing Lianyi.
Upon trial, the Higher People’s Court of Heilongjiang
Province confirmed the facts found in the first instance.
The focuses of dispute that should be solved in the second
instance were: 1. the application of law in this case;
2.whether there was any sectoral risk; 3. whether Shenyin
Securities should assume the examination liability of the
accounting firm; 4. the liability of the misrepresentation
maker and the actual controller of the listed company; 5.
the beginning and computation of the limitation of action;
and 6. the calculation of the amount of losses.
The Higher People’s Court of Heilongjiang Province held
that:
As to the first focus of dispute: as a judicial
interpretation, the basis and interpretation target of the
Provisions on the Cases of Securities Compensation include
not only the Securities Law but also the General Principles
of the Civil Law and the Company Law, etc. The
misrepresentations involved in this case were made before
the implementation of the Securities Law, so the liability
could not be imposed on the violator according to the
Securities Law, but any and all civil acts should be
governed by the principle of good faith as established in
the General Principles of the Civil Law, as well as the
obligations as determined in the laws, administrative
regulations and other relevant industrial rules, otherwise,
the actor should assume civil liabilities according to the
General Principles of the Civil Law and other relevant laws
and administrative regulations. The Regulation on Stock
Issuance and Trading is an administrative regulation
formulated by the State Council for the purpose of
regulating the securities market, in which the information
disclosure obligation of the securities issuers, listed
companies, underwriters and other subjects in the securities
market is specified, the administrative punishment on the
misrepresentations is prescribed and the civil compensation
liabilities for misrepresentation makers are also
prescribed. This Regulation as well as other relevant
administrative rules and industrial rules are the specific
standards for determining whether the parties involved have
violated the principle of good faith established in the
General Principles of the Civil Law and whether any tort has
been constituted. The misrepresentations involved in this
case were made after the promulgation and implementation of
the Regulation on Stock Issuance and Trading, the CSRC
conducted verifications and punishments according to this
Regulation, and the original judgment was also rendered
according to this Regulation and the Provisions on the Cases
of Securities Compensation, which is proper. Daqing Lianyi
claimed that the original judgment determined the liability
of compensation of the wrong-doer according to the
Securities Law, which is not true to the fact after we
studied the original judgment, so it was just Daqing
Lianyi’s misunderstanding of the original judgment. Daqing
Lianyi also argued that the Provisions on the Cases of
Securities Compensation had no administrative legal effect
and had been abolished, regrettably such claim was not based
on law. As discussed above, the Regulation on Stock Issuance
and Trading provides not only for the administrative
punishment but also the civil compensation liability of the
misrepresentation maker. Moreover, Article 110 of the
General Principles of the Civil Law also prescribes that:
“Where a citizen or legal person that assumes any civil
liability needs to be given an administrative liability, the
administrative liability shall be given”. The administrative
liability and the civil liability are two different legal
liabilities and can be repeated or superadded. Although
Daqing Lianyi was given an administrative punishment by the
CSRC, which did not affect its civil compensation liability
for the losses caused to the investors due to its
misrepresentations. Daqing Lianyi claimed in its appeal that
the imposition of civil liability on it in the original
judgment was a repeated punishment and the civil
compensation liability on the misrepresentations made before
the effectiveness of the Securities Law should be exempted
could not be established.
As to the second focus of dispute: Item (4) of Article 19 of
the Provisions on the Cases of Securities Compensation
prescribes that: where the defendant submits evidences to
prove that the losses or part of losses of the plaintiff are
caused by the sectoral risk of the securities market or any
other factor, the people’s court shall affirm that there is
no causal relationship between the misrepresentations and
the damage resulted. Although this Article takes the
sectoral risk as a condition for the exemption of civil
liability, the definition of sectoral risk has not been
clarified, and since both parities have different
understanding to the sectoral risk, so the definition of
sectoral risk should be determined according to the common
understanding. As a general rule, the sectoral risk is
understood as risk factors that will cause general effects
to the securities market, is characteristic of being
intrigued by common factors and will affect all the stock
prices in the securities market, and this kind of effects
can not be controlled by a single enterprise or industry,
and the investors also could not eliminate such effects by
scattering the investment. Daqing Lianyi appealed that the
original judgment did not take into account the effects of
sectoral risk on the losses of Chen Lihua et al, and
submitted such evidences as relevant stock prices and
alteration of indexes in Shanghai Stock Exchange so as to
support its claim. Since Daqing Lianyi put forward such a
claim, it should first present evidences to prove the causes
of sectoral risk, then should prove that these causes had
great effects on the stock market and resulted in the
dramatic fluctuation of all the stocks as well as the
occurrence of sectoral risk. However, in view of all the
evidences Daqing Lianyi submitted to the courts of the first
and second instances, it could not be proved that there
existed any factor reasonable enough to cause the dramatic
fluctuation of all stock prices in the securities market
between April 21, 1999 and April 27, 2000, nor could it be
proved that the cause had a logical relationship with the
price fluctuation in the stock market. With respect to how
the misrepresentation and the sectoral risk would affect the
stock price fluctuation and the degree of each kind of
effects, Daqing Lianyi also did not put forward specific
distinguishing and judging standards or persuasive reasons.
Upon examination, it was found that the stock trading showed
in the large-cap chart of the stock market was fairly stable
between April 21, 1999 and April 27, 2000 and the Composite
Index of Shanghai Stock Market did not drop to a large
degree. During that period of time, the misrepresentation of
Daqing Lianyi in the fraudulent listing continuously
affected the stock price, and the shareholders invested in
and purchased the stocks of Daqing Lianyi under the
condition of information asymmetry, which resulted in
investment losses. Thus there was indeed a causal
relationship between the investment losses and the
misrepresentation. As to the civil judgment for the case of
compensation for the misrepresentation rendered by another
court as was submitted by Daqing Lianyi in the second
instance, it could not form the basis for dealing with this
case since the said judgment had not taken effect, and the
time while the investors in that case conducted stock
transactions as well as the degree of effects of the
misrepresentation on the investors in that case were
different from those in this case. Since the evidences
submitted by Daqing Lianyi could not prove the real
existence of system risk, the original judgment was proper
to deny the defenses of Daqing Lianyi that there was
sectoral risk and its compensation liability should be
exempted for the sake of insufficient evidences.
As to the third focus of dispute: Shenyin Securities
appealed that the Prospectus should be examined by the
accounting firm, and it did not have such an obligation;
furthermore, the Prospectus was only targeted to the primary
market and was covered by the information disclosed
consecutively, and the investors buy and sell stocks at the
secondary market for the purpose of speculation but on the
basis of the Prospectus, therefore, Shenyin Securities
defended that it should not assume joint and several
liabilities for the misrepresentation.
According to the Provisions on the Cases of Securities
Compensation, both the securities undertaker and the listing
recommender or any other professional intermediary
institution have the duty to examine the listing documents
of a securities issuer or a listed company, and may assume
joint and several liabilities for the misrepresentation of
the issuer or listed company. A lawsuit in which any
aforesaid subject is a defendant belongs to a common case of
joint action. During the proceedings of the first instance,
Chen Lihua et al chose some parties as the defendant on the
basis of their judgment of litigation interests, which did
not violate the law. The court determined the participants
in court proceedings upon the request of Chen Lihua et al,
which showed its respect to the right to choose the parties
concerned and was proper. Before a misrepresentation is
completely revealed, even if any other information
disclosure obligor consecutively disclosed any other false
information, the reliance of investors on the information
disclosed theretofore could not be excluded. It was a legal
act for an investor to conduct stock transactions for the
purpose of obtaining profits; and the investment motives of
an investor was not a statutory condition for the exemption
of compensation liability for the damages. Since the
misrepresentations have caused losses to the investors that
conduct lawful stock transactions, the compensation
liability for misrepresentation makers could not be exempted
because of the different motivation of trading of the
investors. As a securities operator, Shenyin Securities
recommended and underwrote the issuance of stocks of Daqing
Lianyi, and was thus a statutory information disclosure
obligor. Shenyin Securities did not perform the obligations
of diligence and prudent attention as required by law, and
failed to correct the misrepresentations of Daqing Lianyi,
nor did it issue reserved opinions, instead, it formulated
and issued the documents containing misrepresentations. At
the same time, Shenyin Securities did not present evidences
to the court to prove that there was any statutory cause for
exemption of its liability. The content and nature of
Shenyin Securities’s violation had been confirmed by the
administrative punishment given by the CSRC. Shenyin
Securities objected to court’s the affirmation in the
original judgment that “Shenyin Securities failed to conduct
serious examination and resulted in the major false
information in the declaration materials”, such objection is
in conflict with the effective administrative punishment and
clearly could not be established. Thus, it was proper for
the original judgment to order Shenyin Securities to assume
joint and several liabilities according to Article 27 of the
Provisions on the Cases of Securities Compensation. The
grounds for the appeal of Shenyin Securities that it should
not assume any liability were not based on law or facts, and
should not be supported.
As to the fourth focus of dispute: upon examination, it was
found that the misrepresentations involved in this case were
indeed made by Petro-chemical General Plant in the name of
Daqing Lianyi before Daqing Lianyi was established. Daqing
Lianyi was established by some of affiliated enterprises of
Petro-chemical General Plant. Therefore, Petro-chemical
General Plant was not only the misrepresentation maker but
also the actual controller of Daqing Lianyi. Chen Lihua et
al only brought the accusation against Daqing Lianyi and
Shenyin Securities and not against Petro-chemical General
Plant, so Petro-chemical General Plant was not an
indispensable participant in proceedings. As a listed
company, Daqing Lianyi could first assume the liability of
compensation, and then recourse the compensation against its
actual controller, Petro-chemical General Plant, according
to Article 22 of the Provisions on the Cases of Securities
Compensation. The distribution or transfer of liability
between Daqing Lianyi and its actual controller,
Petro-chemical General Plant, was another legal relationship
and did not fall into the scope of trial of this case.
As to the fifth focus of dispute: although the
misrepresentation in the Annual Report 1997 of Daqing Lianyi
was revealed on April 21, 1999 and some appellees also
argued that they knew the occurrence of misrepresentation on
that day in the proceedings of the original instance,
Article 6 of the Provisions on the Cases of Securities
Compensation prescribes that where an investor lodges a
lawsuit of civil compensation against the misrepresentation
maker for his damages caused by the misrepresentation, the
investor shall take the administrative punishment decision
of the relevant organ or the criminal ruling of the people’s
court as the basis, otherwise, the people’s court shall not
accept the lawsuit. And before the administrative punishment
decision of the relevant organ or the criminal ruling of the
people’s court is rendered or published, the investor could
not lodge a lawsuit. Therefore, it would be unfair to the
investors if the limitation of action for the investors to
lodge a lawsuit of compensation from the misrepresentation
infringement according to Article 137 of the General
Principles of the Civil Law - “The limitation of action
shall begin when the entitled person knows or should know
that his rights have been infringed upon.” It was correct
for the original judgment to calculate the limitation of
action for this case as of the day when the punishment
decision made by the CSRC against the misrepresentation
maker was published according to Item (1) of Paragraph 1 of
Article 5 of the Provisions on the Cases of Securities
Compensation. And the aforesaid claim of Daqing Lianyi was
groundless and should not be supported.
As to the sixth focus of dispute: upon examination, it was
found that the method for the original judgment to calculate
the average purchase price of securities was: the total cost
of an investor for buying stocks was first calculated on the
basis of the purchase price and amount of each actual
transaction, then was subtracted by the balance of capital
the investors obtained during this period of time from
selling stocks, and then was deducted by the amount of
stocks still held by the investor. In light of this
calculation method, the average purchase price of securities
by some investor might be higher than the historical highest
price of the stocks. However, it was only a datum that may
occur during the course of calculating the investment margin
loss of the investor and was largely determined by the stock
holding amount of the investor before the date of
disclosure, and this datum was not the actual transaction
price when the investor purchased the stocks, and was
commensurable with the historical highest price of the
stocks of Daqing Lianyi. For the time being, there are
several methods to calculate the investment margin loss of
an investor due to the complexity of securities trading,
only if a method meets the principles determined in Articles
30 to 32 of the Provisions on the Cases of Securities
Compensation and the calculation result was fair, which kind
of calculation method should be used is up to the discretion
of the court. The calculation method adopted in the original
judgment was in line with the Provisions on the Cases of
Securities Compensation, and was good for protecting the
interests of most investors, and thus need not to be
changed. The reasons for appeal of Daqing Lianyi that the
amount of compensation for the losses was wrongly calculated
in the original judgment could not be adopted. At the same
time, since Paragraph 2 of Article 30 of the Provisions on
the Cases of Securities Compensation has clearly prescribed
that the scope of civil compensation liabilities a
misrepresentation maker should assume in the securities
trading market includes the interests, namely, the interests
of the capital involved in the case should be calculated
according to the rate of current bank deposits from the day
when the securities were bought or sold or from the base
day, so the claim of Daqing Lianyi in the appeal that it did
not consent to paying interests for the investment margin
loss could not be supported, either.
Based thereon, the Higher People’s Court adjudicated as
follows on December 21, 2004 according to Item (1) of
Paragraph 1 of Article 153 of the Civil Procedure Law:
The appeal should be rejected and the original judgment
should be maintained. |
