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开展成本效益分析是美国多数监管机构制定规则时的必要步骤,它要求仅当拟制定规则的效益能够证明成本的正当性时方可发布规则。美国证券交易委员会(Securities Exchange Commission,SEC)虽然不在必须开展规则成本效益分析的机构之列,但它自20世纪80年代起便对所制定规则的成本及效益进行考量。实践中SEC对成本效益分析方法的运用存在缺陷,因而遭到了国会的质疑,法院也对SEC部分规则进行了司法审查。本文从SEC近年来遭受的三次行政败诉谈起,揭示良好的立法~([1])成本效益分析在美国证券监管机构规则制定中的重要性,进而探究该方法在证券领域规则制定过程中的应用与经验,以期对我国的证券修法活动提供一些有益参考。
Cost-benefit analysis is a necessary step in the development of the rule by most U.S. regulators and requires the rule to be issued only if the effectiveness of the proposed rule can justify the costs. Although the Securities Exchange Commission (SEC) is not among the institutions that need to conduct a rule-based cost-benefit analysis, it has considered the costs and benefits of the rules laid down since the 1980s. In practice, the SEC has a flaw in its use of cost-benefit analysis methods and has been challenged by Congress, and the courts have also conducted judicial review of some of the SEC rules. This article starts with the three administrative losses suffered by the SEC in recent years and reveals the importance of good legislation ~ ([1]) cost-benefit analysis in the rules-making of securities regulators in the United States. Then it explores the importance of this method in the rule-making process in the securities field Application and experience, with a view to provide some useful reference for China’s securities law enforcement activities.