终身证券市场禁入的正当性难题及其化解

我国证券监管所采用的终身证券市场禁入，剥夺了行为人参与证券市场的资格或机会，需要接受“正当性”的拷问。基于公共利益理论、利益平衡分析等论证证券市场禁入的正当性，未深入到行为人自身内部寻找正当性根据，均存在一定的局限性。证券市场禁入的正当性基础，应当回归到行为人自身，注重行为人自身“适合”参与证券市场的可期待性。终身证券市场禁入具有鲜明的“惩罚性”，面临着责任追究无边界等正当性难题。化解这一难题的路径是去除证券市场禁入的“惩罚性”，允许被禁入对象“救赎”自己，建立终身证券市场禁入的适时退出程序，明确终身证券市场禁入的退出标准，动态跟踪监测被禁入对象个体情况，适时赋予其参与证券市场的“第二次机会”。

Legitimate Problem in the Life-long Debarment of Securities Market and Its Solution Path

The life-long debarment of securities market adopted by China's securities regulatory system deprives the person of the qualification or opportunity to participate in the securities market, which requires the interrogation of its “legitimacy”. Based on the theory of public interest, interest balance analysis and other theories, the justification of the debarment of securities market does not go deep into the debarred person for the basis of legitimacy, so there are certain limitations. The justification foundation of the debarment of securities market should return to the debarred person, and focus on the expectation of the debarred person's “fitness” to participate in the securities market.The life-long debarment of securities market has a distinct “punitive” nature, and there are legitimate problems such as boundless accountability. The way to solve this problem is to get rid of the “punitive” nature of the debarment of securities market, allow the debarred person to “redeem” himself, and we should establish a timely revocation procedure for the life-long debarment of securities market, define the revocation standard, dynamically track and monitor the individual situation of the debarred person, and give him a “second chance” to participate in the securities market in due time.