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我国证券市场尚处于发展的初级阶段,由于证券交易制度不健全、证券公司内控机制失灵等原因,证券公司经营风险日益扩大,直接危及证券市场的健康发展。近几年中国证监会加大了对违规证券公司的查处和清理力度,对于出现严重违规和支付危机的证券公司,使用停业整顿、撤销、关闭、托管和行政接管等处置方式来化解金融风险。目前,经过最高人民法院及中国证监会等多方的共同努力,大鹏证券、南方证券等证券公司已进入破产程序,随着证券公司综合治理工作的深入开展,还有相当一批证券公司将进入破产程序。在这一过程中,证券公司面临着行政处置程序与破产程序,这是两种完全不同的程序。其在启动的法律依据、参与主体、工作内容、法律效力等方面有诸多差异,但是两种程序最终的目标又是一致的,即使无力挽救的证券公司依法退出市场,化解金融风险。两种程序衔接的顺当与否,直接影响我国的金融秩序。但如何衔接,目前我国现有法律没有具体、可操作性的规定,也没有成功的先例可供借鉴,本文对在大鹏证券、南方证券破产清算中遇到的若干法律问题进行分析,以求教于同仁。
China’s securities market is still in the initial stage of development. Due to the imperfect securities trading system and the failure of internal control mechanism of securities companies, the operating risks of securities companies are expanding day by day, which directly endanger the healthy development of the securities market. In recent years, China Securities Regulatory Commission stepped up the investigation and clearance of illegal securities companies. For securities companies that have experienced serious violations of laws and payment crisis, they have used such methods as suspension of business operations, revocation, closure, custody and administrative takeovers to resolve financial risks. At present, securities companies such as Dapeng Securities and Nanfang Securities have entered bankruptcy procedures through the joint efforts of the Supreme People’s Court and the China Securities Regulatory Commission. With the deepening of the comprehensive management of securities companies, a considerable number of securities companies will enter Bankruptcy proceedings. In the process, securities companies are faced with administrative procedures and bankruptcy proceedings, which are two completely different procedures. There are many differences in the legal basis, the participants, the content of work and the legal effect of the initiation. However, the ultimate goal of the two procedures is the same, even if the securities companies unable to salvage withdraw from the market according to the law to defuse the financial risks. The smooth convergence of the two programs directly affects our country’s financial order. However, there is no concrete and operable rules for the existing laws in our country, and there are no successful precedents for reference. This article analyzes some legal problems encountered in the bankruptcy and liquidation of Dapeng Securities and Nanfang Securities, Yu colleagues.