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An Empirical Analysis of the Public Enforcement of Securities Law in China: Finding the Missing Piece of the Puzzle

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Abstract

China’s public enforcement regime has long been blamed for insufficiently and ineffectively deterring securities crime. We collect data on public enforcement outcomes from documents disclosed by listed firms and find that law enforcement outputs have increased significantly since 2011, thanks to the efforts of the China Securities Regulatory Commission’s 38 regional offices. However, due to the lack of a reliable private enforcement regime and the limitations of monetary penalties, the general enforcement of securities law is still regarded as weak. In addition, there exists a salient pattern of selective enforcement. Privately owned listed firms face a harsher regulatory environment in terms of both the number and severity of sanctions from regulators, whereas state-owned, and particularly central-government-controlled firms enjoy the most favourable treatment, although the gap has been reduced in recent years.

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  1. See La Porta et al. (1998). See also two survey articles, i.e., La Porta et al. (2008) and Xu (2011b), on this strand of literature.

  2. See Bhattacharya and Daouk (2002).

  3. See Jackson and Roe (2009).

  4. In general, law enforcement can be divided into two categories. The first is private enforcement, which is initiated by private litigation, and the second is public enforcement, which relies on public authorities, such as the U.S. Securities and Exchange Commission (SEC) or tax collection agents. See Polinsky and Shavell (2000), at p 45. A new enforcement model mixing features of both public and private enforcement is the state attorneys general who bring civil actions in American federal courts; this model has not yet emerged in China. For a more detailed discussion, see Lemos (2011).

  5. See CSRC’s Annual Report 2014, at p 15, available at http://www.csrc.gov.cn/pub/newsite/zjhjs/zjhnb/ (last visited 5 February 2016).

  6. The average daily trading volume of the two Chinese stock exchanges was around 303.6 billion RMB in 2014, second only to the New York Stock Exchange (NYSE) and National Association of Securities Dealers Automated Quotations (NASDAQ), see CSRC’s Annual Report 2014, supra n. 5, at p 18.

  7. The MOF shares responsibility for identifying accounting anomalies with the CSRC, but in our sample its regulatory outputs are negligible.

  8. Unlike stock exchanges in the US, which operate independently from the federal regulator (SEC), the CSRC has de facto authority over these two exchanges. See Liebman and Milhaupt (2008).

  9. Private enforcement is designed to serve both functions, see Coffee (2006).

  10. See Chen et al. (2005).

  11. See supra n. 8.

  12. See Article 11.11.3 of the 2014 Listing Rules of the Shenzhen Stock Exchange, available at http://www.csrc.gov.cn/pub/shenzhen/xxfw/tzzsyd/ssgs/zh/zhxx/201504/t20150430_275951.htm (last visited 5 February 2016) and Article 11.12.5 of the 2014 Listing Rules of the Shanghai Stock Exchange, available at http://www.csrc.gov.cn/pub/shenzhen/xxfw/tzzsyd/ssgs/zh/zhxx/201504/t20150430_275950.htm (last visited 5 February 2016).

  13. The ROs and the two stock exchanges also sanction non-listed firms or individuals for securities misconduct. For example, senior managers of intermediaries, which are hired to perform mergers and acquisitions involving listed companies, may be sanctioned for illegally trading listed shares issued by target companies using inside information. Listed companies are under no obligation to disclose such sanctions.

  14. See Allen et al. (2005), Clarke (2010), Layton (2008) and Pistor and Xu (2005).

  15. See Rose (2008).

  16. For a more general discussion of selective public enforcement, see Landes and Posner (1975).

  17. See supra n. 14.

  18. The MOF has the authority to investigate accounting anomalies of listed firms, but its regulatory outputs are limited. Regarding the MOF’s role, see Article 42 of the 1999 Accounting Law, available at http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=23550&keyword=%E4%BC%9A%E8%AE%A1%E6%B3%95&EncodingName=&Search_Mode=accurate (last visited 5 February 2016).

  19. The definition, meaning and scope of administrative versus non-administrative sanctions are stipulated in Article 8 of the 2009 Administrative Penalty Law, according to which administrative sanctions mainly include formal warnings, monetary fines, disgorgement of illegal gains, suspension of production or business, temporary seizure or revocation of licence, and administrative detention, available at http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=167113&keyword=%E8%A1%8C%E6%94%BF%E5%A4%84%E7%BD%9A%E6%B3%95&EncodingName=&Search_Mode=accurate (last visited 5 February 2016).

  20. Non-administrative sanctions mainly include internal criticism, public criticism, censure and correction orders, etc.

  21. In addition to establishing ROs in China’s 31 provinces (autonomous regions and municipalities), the CSRC has also set up offices in five cities, including Dalian, Ningbo, Qingdao, Shenzhen and Xiamen. In our sample the RO in Qinghai province has no regulatory outputs.

  22. See Article 5 of the CSRC’s 2015 Provisions on the Regulatory Responsibilities of Resident Agencies, available at http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=259260&keyword=%E4%B8%AD%E5%9B%BD%E8%AF%81%E7%9B%91%E4%BC%9A%E6%B4%BE%E5%87%BA%E6%9C%BA%E6%9E%84%E7%9B%91%E7%AE%A1%E8%81%8C%E8%B4%A3%E8%A7%84%E5%AE%9A&EncodingName=&Search_Mode=accurate (last visited 5 February 2016).

  23. See Article 1 of the CSRC’s 2003 Notice on the Regulatory Responsibilities of Resident Agencies, available at http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=124725&keyword=%E6%B4%BE%E5%87%BA%E6%9C%BA%E6%9E%84%E7%9B%91%E7%AE%A1%E5%B7%A5%E4%BD%9C%E8%81%8C%E8%B4%A3&EncodingName=&Search_Mode=accurate (last visited 5 February 2016).

  24. See http://finance.ifeng.com/roll/20101102/2811349.shtml (last visited 5 February 2016).

  25. See the CSRC’s website, at http://www.csrc.gov.cn/pub/newsite/zjhxwfb/xwdd/201309/t20130927_235486.html (last visited 5 February 2016).

  26. See Articles 102(1) and 105(2) of the 2005 Securities Law, available at http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=233280&keyword=%E8%AF%81%E5%88%B8%E6%B3%95&EncodingName=&Search_Mode=accurate (last visited 5 February 2016).

  27. See supra n. 8, at p 931.

  28. Id., at p 962.

  29. See Articles 55 and 56 of the 2005 Securities Law, supra n. 26.

  30. The SPC even promulgated the Notice on Temporarily Not Accepting Civil Compensation Cases Related to Securities on 21 September 2001, instructing lower courts to refuse acceptance of civil compensation cases related to securities disputes due to current legislative and judicial limitations, available at http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=36895&keyword=%E8%AF%81%E5%88%B8%E6%B0%91%E4%BA%8B%E8%B5%94%E5%81%BF&EncodingName=&Search_Mode=accurate (last visited 5 February 2016).

  31. The private suits governed by the SPC’s 2002 Notice include those involving misrepresentations in the stock markets and exclude those related to insider trading and market manipulation.

  32. For discussions on administrative prerequisites and other features of the SPC’s 2002 Notice, see Guo and Ong (2009), Hutchens (2003) and Lu (2003).

  33. Huang (2013).

  34. In addition to the significant costs of using the Chinese court system, retail investors also face a collective action problem because only individual and joint actions, rather than class actions, are allowed, see Xu (2016).

  35. A multi-enforcer approach is adopted in the US stock market (Rose (2010)). In other words, law enforcement relies not only on governmental agencies (including the SEC, state regulators (Rose and LeBlanc (2013), and the Department of Justice), but also on quasi-governmental agencies (including the NYSE, NASDAQ and Financial Industry Regulatory Authority (Birdthistle and Henderson, (2013)), as well as private parties (such as investors who can resort to litigation to protect their interests (Choi (2004)).

  36. Stewart and Sunstein (1982).

  37. See supra n. 3.

  38. Another dimension of regulatory inputs is the on-the-book liability standards. To efficiently deter securities crime, the regime of agent liability, instead of enterprise liability, should be adopted. See Arlen and Carney (1992).

  39. CSRC’s Annual Reports (Fiscal Years 2010, 2011, 2012, 2013 and 2014), available at http://www.csrc.gov.cn/pub/newsite/zjhjs/zjhnb/ (last visited 5 February 2016).

  40. SEC, Fiscal Year 2014 Agency Financial Report, at p 9, available at https://www.sec.gov/about/secreports.shtml (last visited 5 February 2016).

  41. In 2014 there was a rumour on the market that the CSRC would double the staffing level of the examination division to 600, see http://finance.ifeng.com/a/20140604/12477301_0.shtml (in Chinese). However, there has been no official news as of January 2016.

  42. See United States Government Accountability Office, Greater Attention Needed to Enhance Communication and Utilization of Resources in the Division of Enforcement (2009), at pp 17–18, available at http://www.gao.gov/assets/290/288156.pdf (last visited 5 February 2016).

  43. See supra n. 3.

  44. See La Porta et al. (2008), at p 286.

  45. See Pistor and Xu (2005).

  46. Listed firms are required to disclose major events that may influence the price of their securities and derivatives. The definition of a major event is provided in Article 30 of the Administrative Measures for the Disclosure of Information of Listed Companies (promulgated by the CSRC on 30 January 2007, available at http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=83590&keyword=%E4%B8%8A%E5%B8%82%E5%85%AC%E5%8F%B8%E4%BF%A1%E6%81%AF%E6%8A%AB%E9%9C%B2&EncodingName=&Search_Mode=accurate, last visited 5 February 2016). More specifically, Article 30(11) requires that listed firms make public announcements when they are under public investigation or receive criminal or major administrative sanctions, or when their directors, supervisors or senior managers are subject to public investigation or coercive measures. Our data are mainly from CSMAR, one of the largest financial data suppliers in China (available at http://www.gtarsc.com/).

  47. A sanction-based measure means that the regulatory outputs are calculated by counting the number of sanction decisions made by various regulators, rather than the number of individuals or firms punished in each decision. It is highly likely that one sanction decision involves multiple individuals or firms.

  48. The latest date for which we could access the data set is 8 January 2016.

  49. The excluded sanctions are issued by firms themselves, environmental protection agencies, safety control agencies, etc.; these do not fit the classification of public enforcement of securities law.

  50. We find and delete two types of repetitive recordings. First, we delete those entries that record exactly the same content; second, for the same illegal activities, the CSRC may sanction listed firms, their law firms and their accounting firms in separate administrative decisions, which are therefore deemed as repetitive recordings.

  51. Non-listed firms or individuals received fewer sanctions in our sample, which is probably due to the fact that a significant proportion of sanctions are not disclosed.

  52. As regards listed firms that were sanctioned in 2015, information on the identities of their controllers is not available. Hence, we use the data reported at the end of 2014 as substitutes.

  53. A listed firm is usually sanctioned for multiple acts of misconduct in one decision. Our sample covers 4461 sanctioned acts of misconduct by listed firms, 2434 of which relate to misrepresentation. The second largest group is ‘miscellaneous’, which includes 1199 sanctioned acts of misconduct.

  54. Our sample covers 1104 sanctioned acts of misconduct by non-listed firms or individuals, 488 and 275 of which relate to transactional misconduct and misrepresentation, respectively.

  55. See two seminal articles on regulatory capture, Stigler (1971) and Peltzman (1976).

  56. See supra n. 14.

  57. See CSRC’s Annual Report 2014, supra n. 5, at p 14.

  58. More details can be found at http://finance.ifeng.com/roll/20101102/2811349.shtml (in Chinese).

  59. The annual enforcement outputs of the CSRC and its ROs from 2011 to 2014 recorded in our sample are 181, 288, 300 and 235, respectively, whereas during the same time those of the SEC are 735, 734, 676 and 755, respectively. Considering that the number of listed domestic firms in China is around 60% of that of the US, the intensity of public enforcement of securities laws in China ranges from one half to two-thirds of that in the US between 2011 and 2014. However, it has been pointed out that the SEC has overstated its enforcement outputs, see Velikonja (2016). For the data on the SEC’s enforcement outputs, see the SEC’s website, https://www.sec.gov/news/newsroom/images/enfstats.pdf (last visited 5 February 2016). For data on the number of listed firms in China and the US, see the World Bank Indicators, available at http://data.worldbank.org/indicator/CM.MKT.LDOM.NO (last visited 5 February 2016).

  60. Xu (2011a).

  61. More specifically, this personnel control system is a nested network in which the centre directly controls key positions at the provincial level and grants each tier of subnational government the power to appoint key officials at the next level below. Each subnational government level oversees the appointment, evaluation, promotion and dismissal of its subordinate-level regional leaders.

  62. Certainly, there is a possibility that regional competition may lead to a ‘race to the bottom’ rather than a ‘race to the top’. For example, economic goals, such as GDP growth, tax collection and FDI inflow, have long been targets that are tightly correlated with Chinese local officials’ prospects of promotion, incentivising them to pursue, e.g., economic construction projects regardless of local conditions, public opinion and even national laws if they are understood to conflict with economic aims. Certain economic, social and environmental problems have therefore emerged and endangered the stability of China’s economy and society. See, for example, Xu and Faure (2016). For more general discussions of the topics ‘race to the bottom’ and ‘race to the top’, see Cary (1974) and Winter (1977).

  63. As Lü clearly states, ‘the Chinese central government is poised to benefit from social policy initiatives regardless of the success or failure of policy implementation. If a social policy is not well implemented at the local level, residents receive few policy benefits. Then citizens blame the local government because they hold it responsible for providing public goods and service, even though the implementation failure may be caused by insufficient transfers from upper levels of government. Conversely, if the policy is implemented successfully and local residents benefit, they credit the central government more than the local government, because state media tend to favor the central government, which initiated the policy and provides fiscal transfers to the local government.’ See Lü (2014), at p 426.

  64. For discussions of the effects of administrative prerequisites on private enforcement of securities law, see supra n. 32.

  65. See Huang (2013) and Xu (2016).

  66. In contrast, in the American markets the average annual number of private enforcements, including class actions and stock exchange arbitrations, was approximately 2824 between 2002 and 2004. See Jackson (2007), at p 280.

  67. Article 193 of the 2005 Securities Law, supra n. 26.

  68. See supra n. 16.

  69. A study using the enforcement data disclosed by the CSRC’s annual reports finds that it maintains a relatively ‘level playing field’ for listed firms, except for the fact that CGCFs receive favourable treatment. See Zhou (2015). It may be argued that the strategy of focusing law enforcement on a particular type of listed firms could, in certain circumstances, generate positive net social gains given the limited resources at the CSRC’s disposal. See Lando and Shavell (2004).

  70. The data set used in this subsection excludes sanctions issued by the MOF and those against FFs because their numbers are too small to conduct a meaningful in-depth analysis. Hence, the sample size is reduced to 2108 sanctions against listed firms.

  71. It must be recognised that we cannot rule out the possibility that CGCFs have established a better corporate governance structure that leads to fewer infringements.

  72. The other two possible administrative sanctions are disgorgement of illegal gains and disqualifications.

  73. Huang and Wang (2011).

  74. Johansson (2012).

  75. Available at http://www.china.com.cn/news/zhuanti/09myjjlps/2009-09/28/content_18621412.htm (last visited 5 February 2016).

  76. See Xu and Gui (2015).

  77. Brandt and Zhu (2007).

  78. Haggard and Huang (2008).

  79. Huang (2003).

  80. McGregor (2010).

  81. Brødsgaard (2012).

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Acknowledgements

This paper has benefitted from comments and suggestions from Jennifer Arlen, Ruoying Chen, Binwei Gui, Todd Henderson, Weiqiang Hu, Hui Huang, William Hubbard, Saul Levmore, Wenjing Li, Lin Lin, Zhuang Liu, Jingyuan Ma, Mathew McCubbins, Zeyu Ren, Jiang Wan, Lebing Wang, Kelvin Tan, Yingmao Tang, Tao Xi, Tianshu Zhou, Rainer Kulms (Editor-in-Chief of EBOR), the anonymous referee and seminar participants at the Coase-Sandor Institute for Law and Economics of the Chicago Law School, the Northwestern Pritzker Law School and the School of Law and Economics at CUPL. Guangdong Xu and Wenming Xu thank the Program for Young Innovative Research Teams of the China University of Political Science and Law for financial support (16CXTD09).

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Xu, W., Chen, J. & Xu, G. An Empirical Analysis of the Public Enforcement of Securities Law in China: Finding the Missing Piece of the Puzzle. Eur Bus Org Law Rev 18, 367–389 (2017). https://doi.org/10.1007/s40804-017-0070-6

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