Restarting Suling Case: How to define the responsibility of "Speaking of Fake Words" of the Directors of the Directors | Ge to Knowledge

At present, the academic community generally believes that the false statement of false statements is too strong, and the Kangmei case judgment allows the workers' independent directors to bring 123 million yuan of compensation liability for the "terrorist incident". The proportion of reducing some liability is worthy of recognition.

Author: Miao Yinzhi

Figure: Tuwa Creative

On August 16, the listed company Suling Co., Ltd. announced the results of the first trial of the false statement case. In addition to the issuer, that is, the listed company, the company's directors, supervisors, senior management personnel, and accounting firms are divided into 1%, 3%, 10%, 30%, 60%, and 100%of the six. There are two innovations in the false statement of the false statement in this case.

First, the responsibility is more detailed and the distribution is more balanced. For example, the Five Ocean Treasury Cases (only intermediary agencies) in December 2020 were 5%, 10%, and 100%, and the Kangmei case in December 2021 was 5%, 10%, 20%, and 100%. Moreover, the gap between the high -end responsibility and the highest level of 100%in this case is small. Second, the minimum liability exceeded 5%of the lower limit.

At present, the academic community generally believes that the false statement of false statements is too strong, and the Kangmei case judgment allows the workers' independent directors to bring 123 million yuan of compensation liability for the "terrorist incident". The proportion of reducing some liability is worthy of recognition.

Different administrative and civil liability differences between directors and supervisors

The penalty of the CSRC No. 2020105 fined Soling and 17 directors and supervisors. The actual controller and chairman received 600,000 yuan and 300,000 yuan according to the two identities.

The penalty was divided into 6 stages. The "first evil" of the first stage is Xiao Moumou, a actual controller and chairman, "Knowing, instructed Su Ling's shares to increase operating income, in vitro payment fees, and virtual increasing profits. "The purpose of paying in vitro", "behavior is particularly bad, the circumstances are particularly serious", a fine of 900,000 yuan.

The second gear is three "direct responsible supervisors" with "harsh behavior and serious circumstances", including: Xiao Moumou's spouse, and also served as the company's director and chief financial officer in charge of accounting work, director and deputy general manager, etc. Position, "knows the fact that there is a false increase in operating income and in vitro payment costs." At that time, the vice president and the director Zhong Moumou assisted Xiao Moumou to formulate the performance goals, participate in the funding of funds, and fake export business. At that time, Wang Moumou, the chief financial officer, participated in raising funds and arranging the related income of operating income and in vitro payment costs. The three of them were fined 300,000 yuan each.

The third gear is "other direct responsible persons of illegal acts" of "serious circumstances". Guo Moumou, then the financial manager and head of accounting agency (accountant), participated in the specific implementation of the related implementation of business income and in vitro payment fees. Huang Moumou, the financial leader of the subsidiary, is responsible for the implementation of the relevant matters related to the export operating income. The two men were fined 200,000 yuan each.

The 4-6 personnel do not directly participate in the "other direct responsible persons" who are directly involved in financial fraud, mainly due to the signing of the annual report. The CSRC stated that according to the facts of the case, the position of the responsible person, the actual performance of the responsible person, the meeting resolutions of the relevant annual report, the voting of the meeting, the written confirmation opinions of the annual report, etc. Deng Mouming, deputy general manager, Lin Moumou, chairman of the board of supervisors, and Tong Moumou, the supervisor and the manager of the information technology department, were listed as the fourth gear, each with a fine of 150,000 yuan; The chairman of the board of supervisors, Deng Mouming and Xi Moumou (involved 3 chairman of the Supervisory Committee), and the supervisor Wei Moukui listed as the fifth level, each with a fine of 80,000 yuan; the supervisor Wei Mouguo was listed as the 6th, a fine of 30,000 yuan.

The judgment is not consistent with the responsibility for the above subject. For false statements, it is a bit interesting for administrative responsibility and non -synchronization of civil liability. These two types of responsibilities are not necessarily established at the same time. Administrative responsibility mainly emphasizes information compliance, and it is sufficient to have false records. But unrealistic records do not necessarily have civil liability. For example, some false information itself is not very important, or it is difficult to say that it is good or negative (such as the shareholding of the shares), or it has been corrected when it is correct (for example, admits that it has concealed the borrowing funds, but now it has been recovered), so it is not seen. It will affect investors' decision -making and cause investment damage, and of course it has no compensation.

The false statement of the Soings case itself is established. The director and supervisor are the common responsible person of the issuer. They do not issue independent documents and do not act independently on investors. The role of the file is responsible. The emphasis on administrative responsibility and civil liability evaluation of their circumstances should be consistent.

The judgment of this case emphasizes that the "Securities Law" does not require the punishment of directors and supervisors to make mistakes as the premise of fault. The fault in civil liability is also different from the fault in administrative responsibility. As described below, the basis of the responsibility of the directors of the director of the director also has reasonable basis.

Examination of employee supervisors: a typical sample

Tong Moumou, the supervisor and department manager, was the only director who came to court and made a detailed defense, and his civil liability was significantly reduced compared to the administrative responsibility, so it was particularly worthy of attention.

Tong Moumou made a general defense opinion with other directors and supervisors during the hearing before the punishment, including: (1) I do not know the false records of false reports and major omissions in the case involved in the case. During his tenure, actively perform his duties. (2) Actively cooperate with the regulatory department for investigation. (3) The standard for penalties is not uniform.

The feedback of the CSRC believes that (1) Directors and supervisors should ensure that the listed company disclose the true, accurate and complete information of the listed company, and should understand and continue to pay attention to the company's production and operation, financial conditions, and major events and influences that have occurred or are about to occur. Investigate and obtain the information required for decision -making, ask questions, make questions, and provide suggestions. In the case of normal performance, unknown, unknown, and not participating are just a proof that it is not diligent. (2) Actively cooperating with the investigation is a legal obligation. (3) Considering the participation of the parties, job responsibilities, appointment, professional background, etc., combined with their duties, diligence, and investigation, etc., they clearly distinguish the direct responsible persons and other direct responsible persons, comprehensively identify responsibilities responsibilities And determine the penalty range. Combined with the opinions of the parties' defense, it has been adjusted according to factors such as Tong Moumou and other people's duties, appointments, and performance of their duties.

In a civil lawsuit, Tong Moumou made a defense opinion. Looking at the text, these opinions are probably mentioned in the pre -punishment hearing, mainly including: (1) It is the competent person in charge of the network technology, and the monthly salary is only about 10,000 yuan. The leader of the company's company "see me as honest and directly assigned", which is far from the salary and allowance of executives such as directors, vice presidents, chief financial officers, and financial officers of the company. (2) In the actual operation of the company, whether it is legal presets, or job duties, status and functions, the diligence standards of supervisors should be lower than directors or other executives. The administrative level of his own position is very low. He has no say in the company and does not participate in the company's operating decisions. It is limited to independence and has nowhere to make no contribution. (3) It has not directly planned, participated and implemented false statements, nor cannot verify the authenticity of financial data. The diligence obligation is the process of process, and cannot be derived by results. (4) My family has financial difficulties and paid a fine of 150,000 yuan in the CSRC through borrowing.

Supervisors should have status and non -part -time jobs

The "Company Law" only stipulates that "directors and senior managers shall not be concurrently served as supervisors." This intention is to promote the governance and internal supervision of non -executive employees, but the problem of "low power" is the fatal injury of the supervisor's exercise.

According to the 2018 annual report of Suling, the three supervisors are actually part -time managers. Tongmou's income was 147,000 yuan in the previous year, and Wei Moukui's income was 117,000 yuan. Both of them were employee supervisors. The chairman of the board of supervisors, Wei Moumou is only 64,000 yuan. The company stipulates that "the salary of the company's supervisors is implemented in accordance with the compensation management measures corresponding to the other positions of the company." In other words, the reason why the chairman of the Supervisory Board is only half of the supervisor is because the supervisor is originally a part -time job without salary.

This is quite money for the company. But basically it has also been emptied. From the perspective of the relationship between the ownership, although the board of supervisors is a level of the board of directors, if the body of the supervisor is a subordinate of the director of the director's executive, it is difficult to supervise it. From the perspective of financial incentives, it is difficult for part -time supervisors to be interested in interest. To offend the leaders in order to offend the positions of no salary supervisors, they need to protect their own posts; from the perspective of functional exercise, the manager of the enterprise department is not easy to live, and it may not be exempted from overtime. The daily supervision work; from the perspective of the professional background, the academic degree of supervisors of Soling is high school, technical secondary school, and computer undergraduate.

Therefore, whether it is Su Ling at that time or those listed companies that are not yet happening, if the arrangements of the supervisors are similar to a similar style, they can actually be characterized as "supervision virtual", and it can even be said that sooner or later.

Therefore, I suggest that both the legal rules and the company's articles of association should be as clear as possible: (1) Supervisors should have a level similar to directors' executives. Unless the law is required (such as state -owned enterprises), it is not advocated that employee supervisors, especially low -level employees serve as supervisors. Otherwise, under the current false statement compensation system, it is simply a "pit poor". (Reading of the "Company Law" also allows the board of directors to cancel the board of directors while strengthening the board of directors.

(2) Internal supervisors should generally be non -part -time jobs, except for those who also serve as corporate legal compliance and disciplinary inspection and supervision. In other words, the work content of the supervisor should be focused on supervision and rewarded by supervision. In this way, even if the power is limited, the supervisor can overcome the mind or reasons of slackness due to the exclusive responsibilities, at least the ability to do with the power, such as the independent directors who have more power to join forces (how to work in the supervisor, see the "Wantong Technology Company's Prosecution of the Supervisory Board of the Supervisory Committee : New gameplay, no reason, "May 10, 2021.)

Subsidate gradient of directors' responsibility

In the "other direct responsible persons" who are not directly involved in financial fraud, the CSRC will bring Wu Moumou, deputy chairman and deputy general manager, Director and Deputy General Manager Deng Mouming, Chairman of the Supervisory Committee Lin Moumou, Supervisor and Information Technology Manager Tong Moumou is regarded as a gear and a fine of 150,000 yuan. The fines of other supervisors are lower than Tong Moumou, but the detailed reasons have not been disclosed. The court made them distinguished from them, and the reasons given were more detailed. It pointed out that Director and Deputy General Manager Deng Mouming discovered false statements in "responsibilities, power, and means" Special attention has been carried out, or positive performances have been taken, so 30%of the liability for compensation is determined as appropriate.

Wu Moumou was the deputy chairman, deputy general manager, and general manager of Jiujiang Miaoshi, a subsidiary of Wu Mou. Miao Shilu had a 75 million yuan borrowing of the borrowing. Wu Moumou should be aware of it, and there was no evidence that he had objected and questioned the facts involved in the case. Compensation liability. In other words, in addition to the same responsibility as Deng Mouming, who is slightly lower than his position, Wu Moumou has a special responsibility for the issue of special management subsidiaries.

The Soling case involved a false statement of the three annual reports of 2016, 2017, and 2018, accounting for 344.8%, 208.1%, and 63.0%of the total profit of the consolidated profit statement, respectively. The court believes that Lin Moumou, chairman of the board of supervisors, signed a confirmation of the previous two annual reports, and the two annual reports were seriously faked in accordance with the fakes, so it was determined to bear 30%of the liability for compensation. Signed a confirmation, so it is determined to bear 10%of the liability for compensation.

Generally, most opinions believe that independent directors are part -time jobs, with limited energy for compensation and investment, and responsibility should be lower than internal directors. In fact, the two independent directors from the company's pre -tax revenue was 78,000 yuan, while the chairman of the Supervisory Committee Lin Moumou was 322,000 yuan. However, this case is also special. The judgment pointed out that the audit institution of listed companies has no reservation opinions, and the authenticity of related financial information has also been confirmed by the executive director of the board of directors. Independent directors are difficult to find problems. Independent directors are indeed limited, and only limited liability should be assumed. However, in this case, the accounting firm has issued an audit report of "unable to express opinions", revealed the risks to a certain extent, and still signed and agreed.

Employee Supervisor Tong Moumou and Wei Moukui, "Objectively subject to positions and permissions, do not directly participate in the operating decision -making and daily management of Suling shares, objectively difficult to understand the company's business details. "The necessary information provided", but "but the audit report of" unable to express opinion "has issued a" unable to express opinion ", to a certain extent, which reveals risks to a certain extent, and objectively reflects the actual situation and financial situation of the company. Signing confirmation should have a certain degree of fault. "Tong Moumou signed a confirmation of the three -year annual report, so he assumed 3%of the liability for compensation. Wei Moukui only signed a confirmation, so he assumed 1%of the liability for compensation.

The logic of this kind of claim is clear. The first is to look at the status. The power of the directors and the board of supervisors and the power of the supervisors and the power of employee supervisors are small. The second is to see the number of similar disclosure documents involved in the signature and combine the amount involved in the disclosure document. The third is that it involves specialized matters and can be added additional responsibilities. Fourth, the fault and liability identification is not a pure result theory, but there are more specific and clear standards, that is, non -standard audit reports should not be confirmed. This belongs to the red flag signal that should not be ignored. The CSRC also holds this position in the Rongtai case. In the future, the liability for compensation is expected to be further reduced in cases of signed and confirmed the signing of the standard audit report of the surface -free doubt.

The relationship between the responsibility ratio of the parties in this case is basically balanced. As for whether the specific judgment ratio is high and low, it is natural to see the wisdom, but it is a space for judicial tailoring.

The difference between the number of responsible subjects

A total of nine directors and supervisors were involved in this round of civil lawsuits. Another eight penalty directors were not sued and naturally did not bear responsibility. From the perspective of behavior, it was impossible to be given up by the plaintiff because of their plot too mild.

They have not been prosecuted for two reasons. First, it is because it is difficult to contact relevant personnel, especially people abroad. Another reason is that they have reached a private agreement with the plaintiff. The reasons for the previous one are more common. Although the latter reasons are rare, it needs to be precautually.

When the whereabouts of the specific defendant are unknown, in accordance with the Civil Procedure Law, it can have been delivered by the court to publish an announcement in the media such as newspapers or networks. From the date of the announcement, after sixty days, it is deemed to be delivered. However, due to the extension of the litigation cycle, the plaintiff and the court have no enthusiasm for this. When the defendant already has a bunch of the defendants, when they are already capable of compensation, they have abandoned some defendants and promoted the procedures for litigation.

However, this operation is unfair to the defendant to the defendant. The case of false statements is based on multiple plaintiffs, multiple defendants, and joint responsibilities. This is an important challenge to the original intention of traditional civil law to infringe and joint responsibility. It is the right to choose to sue some people and not to prosecute all people, but it may bring serious unevenness among those who are actual responsible. In this regard, I believe that in the system design, the existing administrative penalties should be used as a preliminary evidence of the defendant's responsibility, and the defendant should be "fully or none".

Specifically, when the plaintiff filed a compensation lawsuit in a false statement, the defendant should provide preliminary evidence that the defendant had false statements and should bear responsibility for false statements. Different grades and strength punishments or warning letters are preliminary evidence of responsibility. In terms of system design, the court should clearly allow the court to add the corresponding grade from administrative responsibilities to the corresponding grade. If it cannot be notified directly, it will be delivered by the announcement of the announcement. Taking the Soings case as an example, if the defendant was picked by the plaintiff. It obviously easily let go of the two "bad behaviors" who have been fined 300,000 yuan, "directly responsible persons in charge", and 2 "other direct responsible persons" of "serious circumstances". The defendant is unfair. The two who were fined 80,000 yuan and 50,000 yuan were also injustice for other subjects who were fined 50,000 to 80,000 yuan. However, the court only gave up the subject with the lightest prosecution of the administrative responsibility, which was fined 30,000 yuan, and the court could allow it.

It is true that theoretically, the responsible person of the prosecution may file a complaint to the unborn subject after being responsible. However, the directly incorporate these subjects into the first round of lawsuits is conducive to investigating the case and reasonable distribution of the responsibilities of all parties. Secondly, after all, the directors of the supervisors were colleagues and even friends.

Since the liability of other debtors is automatically lifted after any person with a liability person, the responsibility of other debtors is also automatically lifted, the person responsible for the latter and weak ability is not necessarily borne by the actual situation. But after all, the response, hiring lawyers and other economic costs, even if the whole body retreats, the defendant is shocking and mental injury.

In addition, it is necessary to prevent the defendant from maliciously colluding the plaintiff or the plaintiff's lawyer to avoid and redemption of their own responsibilities. After all, by paying a little money to the plaintiff, let the plaintiff's firepower focus on others, it may be a cost -effective business.

(The author is a professor at Central University of Finance and Economics)

In the city, I have to prepare 4,400 stocks to collect Yin Yin A shares.

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