Upgrade of cross-border supervision and law enforcement cooperation in capital markets

The "Opinions on Strictly Cracking Down on Illegal Securities Activities According to Law" (hereinafter referred to as the "Opinions") issued by the Central Office and the State Council a few days ago proposes to strengthen cross-border supervision cooperation, strengthen the supervision of Chinese concept stocks, establish and improve the extraterritorial application of capital market laws, etc. . Industry insiders pointed out that this move pointed out the direction for further strengthening the judicial coordination of cross-border supervision and law enforcement in the capital market.

In recent years, as companies "go global" and the interconnection of domestic and foreign capital markets has deepened, securities issuers’ cross-border financing and investors’ cross-border investments have become increasingly complex, and the number and forms of cross-border securities illegal activities have gradually increased. Regulatory coordination is facing new situations and new problems. Industry insiders pointed out that the primary issue is that the legal basis for cross-border securities supervision and enforcement cooperation has yet to be consolidated. For example, the legal system for overseas issuance and listing needs to be further improved; the cross-border data flow management and personal information protection issues involved in the opening of the securities, fund and futures industry also need to be established and improved as soon as possible; another example, although the securities law clarifies the principle of extraterritorial application. However, the specific application conditions, extraterritorial law enforcement procedures, and the effectiveness of evidence lack specific and clear regulations. It is necessary to deepen legal research and speed up the formulation of supporting rules.

In order to strengthen judicial cooperation in cross-border supervision and law enforcement, the "Opinions" put forward three aspects. The first is to consolidate the legal basis for cross-border supervision cooperation. Improve relevant laws and regulations on data security, cross-border data flow, and confidential information management. Establish and improve the extraterritorial application system of capital market laws. Efforts should be made to formulate judicial interpretations and supporting rules for the extraterritorial application of the Securities Law, refine the specific conditions for the extraterritorial application of the law, and clarify matters such as law enforcement procedures and the effectiveness of evidence. Efforts will be made to revise the regulations on strengthening the confidentiality and file management related to the issuance and listing of securities overseas, and to compact the main responsibility of information security of overseas listed companies. Strengthen the standardized management of cross-border information provision mechanisms and processes.

The second is to improve and optimize the supervision and system rules for overseas listing of domestic enterprises. Strengthen the supervision of Chinese concept stocks. Effective measures will be taken to deal with risks and emergencies of Chinese concept stock companies, and promote the construction of relevant regulatory systems. Amend the special regulations of the State Council on the overseas stock raising and listing of joint stock limited companies, clarify the responsibilities of domestic industry supervisors and supervisory departments, and strengthen cross-departmental supervisory coordination.

The third is to further strengthen supervision and law enforcement cooperation with overseas securities regulatory agencies. Adhere to the principle of law and reciprocity, and further deepen cross-border audit supervision cooperation. Explore effective ways and methods to strengthen international securities law enforcement cooperation, actively participate in international financial governance, and promote the establishment of law enforcement alliances to combat cross-border securities violations and crimes. Strengthen foreign-related trials in the capital market, and promote the mutual recognition and enforcement of judicial judgments between foreign countries and China.

Guo Li, a professor at the Law School of Peking University, told a reporter from the Economic Information Daily that most of the Chinese concept stock companies are leading high-tech companies in various industries in China, and they have massive data on national travel, shopping, payment and other fields. In the era of big data, data is an extremely important strategic resource, and cross-border data flow is related to the individual rights of citizens, and it will also have a direct impact on national security. The "Opinions" started from various aspects such as improving data security related legislation, compacting the main responsibility of information security of Chinese concept stock companies, and strengthening the coordination of domestic regulatory authorities to create a set of policy systems that strengthen the maintenance of data security by Chinese concept stock companies, and targeted solving the current outstanding problems in cross-border supervision is also of great significance to maintaining national data security.

Chen Li, chief economist and director of the Institute of Chuancai Securities, said that as China’s capital market opening continues to increase, the two-way capital flow will bring some new problems, but there is a red line that cannot be touched, that is, strict adherence to state secrets. and act within the limits of the law. At the same time, with the continuous advancement of science and technology, some new contradictions and problems have emerged in the capital market, which cannot be fully covered by legal provisions, and gray areas are likely to breed in implementation. Therefore, it is very necessary to establish and improve the system of extraterritorial application of capital market laws. In addition, the current Chinese capital market is still in the growth stage, and perfecting the rule of law is the only way for it to mature.

Strengthening judicial cooperation in cross-border supervision and law enforcement is an inevitable requirement to ensure the high-level two-way opening of the capital market under the new situation, and it has always been the focus of regulatory authorities. On June 22 last year, the chairman of the China Securities Regulatory Commission, Yi Huiman, stated that under the current circumstances, on the one hand, the pace of China’s capital market opening to the outside world will not slow down, but will continue to accelerate; on the other hand, strengthening international regulatory cooperation is the inevitable choice to adapt to the global of financial market opening and risk prevention. He pointed out that the most important thing in combating illegal and criminal activities in the international capital market is to establish a high degree of mutual trust between regulators through adequate communication and cooperation, and on this basis to jointly establish a law enforcement alliance against cross-border securities illegal and criminal activities.

On October 21 last year, Yi Huiman stated at the 2020 Financial Street Forum annual meeting that it is necessary to strengthen cross-border auditing and international supervision and law enforcement cooperation, and actively participate in international financial governance. In June of this year, Yi Huiman once again emphasized at the 13th Lujiazui Forum that global regulatory agencies need to further strengthen mutual law enforcement cooperation, jointly provide the market with a good regulatory expectation and environment, and jointly combat violations of laws and regulations. At the same time, it is necessary to effectively handle the relationship between openness and security. The prerequisite for companies to go overseas for listing is to comply with relevant domestic laws, regulations and regulatory requirements.

It is understood that in recent years, the China Securities Regulatory Commission has adhered to the principles of open cooperation, mutual respect, and respect for international practices in accordance with the "Securities Law" and other legal authorizations, established a multilateral and bilateral regulatory cooperation mechanism with overseas securities regulatory agencies, and actively carried out securities regulatory and law enforcement cooperation to jointly crackdown on illegal and criminal activities in cross-border securities. At present, the China Securities Regulatory Commission has signed a number of bilateral regulatory cooperation memorandums of understanding with securities regulatory agencies in 66 countries or regions, and in 2007 became a signatory of the International Securities Regulatory Commission’s "Multilateral Memorandum of Understanding on Consultation, Cooperation and Information Exchange". Under the aforementioned multilateral and bilateral cooperation mechanisms, the China Securities Regulatory Commission earnestly fulfills its obligations of cross-border law enforcement cooperation. In 2020, the China Securities Regulatory Commission received 71 requests for cross-border law enforcement assistance and completed 68; received 29 requests for cross-border regulatory information exchange and completed 24; and sent 23 requests for law enforcement assistance to overseas securities regulatory agencies.

资本市场跨境监管执法协作升级

中办、国办日前印发的《关于依法从严打击证券违法活动的意见》（以下简称《意见》）提出，加强跨境监管合作，加强中概股监管，建立健全资本市场法律域外适用制度等。业内人士指出，此举为进一步加强资本市场跨境监管执法司法协作指明了方向。

近年来，随着企业“走出去”和境内外资本市场互联互通加深，证券发行人跨境融资、投资者跨境投资的行为日益复杂，跨境证券违法活动数量和形式也逐步增加，跨境监管协作面临新形势和新问题。业内人士指出，首要的问题是跨境证券监管执法合作的法律基础有待夯实。例如，境外发行上市的法规制度体系有待进一步健全；证券基金期货行业开放涉及的数据跨境流动管理、个人信息保护问题也需要尽快建立健全相关法规制度；又如，虽然证券法明确了域外适用原则，但具体适用条件、域外执法程序和证据效力等均缺少具体和明确的规定，需要深化法理研究，加快制定配套规则。

针对加强跨境监管执法司法协作，《意见》提出三方面内容。一是夯实跨境监管合作法治基础。完善数据安全、跨境数据流动、涉密信息管理等相关法律法规。建立健全资本市场法律域外适用制度。抓紧制定证券法有关域外适用条款的司法解释和配套规则，细化法律域外适用具体条件，明确执法程序、证据效力等事项。抓紧修订关于加强在境外发行证券与上市相关保密和档案管理工作的规定，压实境外上市公司信息安全主体责任。加强跨境信息提供机制与流程的规范管理。

二是完善优化境内企业境外上市监管和制度规则。加强中概股监管。切实采取措施做好中概股公司风险及突发情况应对，推进相关监管制度体系建设。修改国务院关于股份有限公司境外募集股份及上市的特别规定，明确境内行业主管和监管部门职责，加强跨部门监管协同。

三是进一步加强与境外证券监管机构的监管执法合作。坚持依法和对等原则，进一步深化跨境审计监管合作。探索加强国际证券执法协作的有效路径和方式，积极参与国际金融治理，推动建立打击跨境证券违法犯罪行为的执法联盟。加强资本市场涉外审判工作，推动境外国家、地区与我国对司法判决的相互承认与执行。

北京大学法学院教授郭雳对《经济参考报》记者表示，中概股公司多为中国各行业领先的高科技企业，掌握国民出行、购物、支付等多领域的海量数据。在大数据时代，数据是极为重要的战略资源，跨境数据流动关乎公民个人权利，也会对国家安全产生直接影响。《意见》从完善数据安全相关立法、压实中概股公司信息安全主体责任、加强国内监管部门协同等多方面入手，打造一套强化中概股公司维护数据安全的政策体系，有针对性地解决目前跨境监管中存在的突出问题，对维护国家数据安全也具有突出意义。

川财证券首席经济学家、研究所所长陈雳表示，随着中国资本市场开放力度不断加强，资本双向流动会带来一些新问题，但有一条红线不可触碰，那就是严守国家机密，在法律范围内行事。同时，随着科技的不断进步，资本市场出现一些新的矛盾和问题，法律条文不能完全覆盖，执行上容易滋生灰色地带。因此，建立健全资本市场法律域外适用制度非常有必要。此外，当前中国资本市场仍处于成长阶段，完善法治是其走向成熟的必由之路。

加强跨境监管执法司法协作，是新形势下保障资本市场高水平双向开放的必然要求，也一直为监管部门所重点关注。去年6月22日，证监会主席易会满表示，当前形势下，一方面中国资本市场对外开放的步伐不会放缓，还会继续不断加快；另一方面，加强国际监管合作，是适应全球金融市场开放和风险防范的必然选择。他指出，打击国际资本市场违法犯罪，最重要的是要通过充分沟通协作建立监管者之间高度的相互信任，并在此基础上共同建立打击跨境证券违法犯罪行为的执法联盟。

去年10月21日，易会满在2020金融街论坛年会上表示，要加强跨境审计和国际监管执法协作，积极参与国际金融治理。今年6月，易会满在第十三届陆家嘴论坛上再次强调，全球各监管机构需要进一步加强相互之间的执法合作，共同为市场提供良好的监管预期和环境，共同打击违法违规行为。同时，要切实处理好开放与安全的关系，企业赴境外上市的前提，是要符合境内相关法律法规和监管要求。

据了解，近年来，中国证监会依据《证券法》等法律授权，坚持开放合作、相互尊重、尊重国际惯例的原则，与境外证券监管机构建立多双边监管合作机制并积极开展证券监管与执法合作，共同打击跨境证券违法犯罪行为。目前中国证监会已与66个国家或地区的证券监督管理机构签署了多个双边监管合作谅解备忘录，并于2007年成为国际证监会组织《磋商、合作及信息交换多边谅解备忘录》的签署方。在上述多双边合作机制下，中国证监会认真履行跨境执法合作义务。2020年，中国证监会共收到跨境执法协查请求71件，办结68件；收到跨境监管信息交换请求29件，办结24件；向境外证券监管机构发送执法协查请求23件。