证券市场先行赔付的理论疏解与规则进路
Theory interpretation and rule design of advance compensation in securities market

摘 要： 证券市场的先行赔付源于经济实践，是市场主体在利益平衡中探索出来的纠纷解决机制，有助于弥补司法行政救济之不足。作为替代性的制度安排，先行赔付本质上是一种诉讼外的和解，基于先行赔付人与投资者之间的自愿协商而达成。从已有的三个实例来看，先行赔付相关规则通过市场主体的认识更新不断形成与改进，既有值得肯定的做法，亦有值得商榷的问题。在《证券法》修订草案设立投资者保护专章的背景下，先行赔付的制度化有赖于公开公平、及时高效、合理适当三项原则的指导，并需要在主体、对象、资金、程序等多个方面进行具体的规则设计。
Abstract: Advance compensation in securities market, originating from economic practices, is the dispute resolution mechanism explored by market subjects in the balance of interests, which helps to recover the shortcoming of judicial and administrative remedy. As an alternative institutional arrangement, the advance compensation is essentially a reconciliation out of litigation based on voluntary consultation between the payer and the investor. Judging from the three existing instances, the rules of advance compensation have been formed and improved through the recognition renewal of the market subjects, and there are some worthy practices and also questionable issues needing to be further discussed over. In the context of the separate establishment of investor protection in the revised draft of Securities Laws, the institutionalization of advance compensation depends on the guidance of three principles, including those open and impartial, timely and efficient, reasonable and appropriate, and needs specific-rule design in the matter of subject, object, fund and procedure