证券监管存在形式理性与实质理性的冲突,突出反映在市场行为中法律形式与经济实质不尽一致的模糊地带。近期市场上有多起交易将本可以一步完成的发行股份购买资产拆分成两步,刻意在形式上分离认股方和资产出售方,其目的是规避重大资产重组监管和借壳上市监管,以及安排发行价折扣。强调实质理性的实质监管可作为对这些模糊地带进行监管的备选工具。然而,实质监管会显著降低证券法规则的明确性和交易行为的后果可预见性,而后者对于证券市场而言是极为重要的。证券监管应更注重形式监管的运用,尽量减少相对不确定的实质监管。特定交易方式合法与否的结论的明确性和可预见性在有的时候比该结论本身更加重要。 There is a conflict between formal rationality and substantive rationality in securities regulation, which highlights the vague area where the legal form and the economic substance in the market conduct are not consistent. Several recent deals on the market have split the purchase of shares that could have been made in one step into two steps, with the intention of formally separating the share registrar and the asset disposer in order to circumvent the regulation of major asset reorganizations and regulators’ backdoor listing, and Arrange a discount on the issue price. Emphasizing substantive regulation of substantive rationality can serve as an alternative tool for regulating these ambiguities. However, substantive regulation can significantly reduce the clarity of the rules of the securities law and the foreseeability of the consequences of the transaction, which is of the utmost importance for the securities market. Securities supervision should pay more attention to the use of formal supervision and minimize the relative uncertain substantive supervision. The clarity and predictability of conclusions about the lawfulness of a particular transaction are sometimes more important than the conclusion itself.