证券代表人诉讼：衍生逻辑、理论阐释与制度塑造

Securities Representative Litigation: Derivative Logic, Theoretical Interpretation and System Shaping

摘要: 证券纠纷代表诉讼是新《证券法》为保护投资者合法权益、促进证券市场发展而创设成文的新制度，目的在于实现私权救济、威慑和预防功能。这一制度能否实现其预先设立的目的，需要先在理论上明确衍生逻辑，进一步阐释催生证券代表诉讼的社会现实、法理渊源、职能定位等理论。此外，证券代表诉讼制度的塑造应当从制度类型上明确其区别于其他诉讼，是在此之外创设的新制度；主体设置上以投资者为主体，并调动多元主体参与；在适用条件层面遵循程序规制的前提下，系统化构建具有中国特色的证券民事纠纷解决机制；衔接机制层面当关注行刑与证券代表诉讼的衔接和互动，形成不同规制路径之间的良性互补，并相应提出构建证券公益诉讼这一创新路径。

Abstract: Representative litigation for securities disputes is a new system created by the new Securities Law to protect the legitimate rights and interests of investors and promote the development of the securities market, aiming to realize the functions of private rights relief, deterrence and prevention. Whether this system can achieve its pre-established purpose requires clarifying the derivative logic in theory and further explaining the social reality, legal source, functional positioning and other theories that gave rise to securities representative litigation. In addition, the shaping of the securi-ties representative litigation system should be clearly distinguished from other litigation from the type of system, and it is a new system created in addition to this; The entity setting is based on investors and mobilizes the participation of multiple subjects; Under the premise of complying with procedural regulations at the level of applicable conditions, we systematically construct a securities civil dispute resolution mechanism with Chinese characteristics; At the level of the connection mechanism, attention should be paid to the connection and interaction between execution and securities representative litigation, forming a benign complementarity between different regulatory paths, and correspondingly proposing an innovative path of building securities public interest litigation.