中美内幕交易监管制度对比研究

发布时间：2018-08-28 11:42

【摘要】：美国的内幕交易法律制度起源于20世纪初期,到现在已发展了近百年,在这近百年里内幕交易这一证券市场的丑恶现象始终就伴随着证券市场的发展而发展,而美国政府打击内幕交易的活动一刻也没有停歇,由于法律制度的完善和具体执法的操作细节的较好衔接,美国被世界各国看作是打击内幕交易学习的楷模,尤其是美国证券交易委员会执法的严厉性和法律实施的有效性一直被世人所称道。中国的证券市场刚刚建立不过20年,这20年中证券业行业获得了巨大发展,中国股票市值规模已跻身世界前列,中国股票市场在不断壮大的同时也存在许多的问题,尤其值得注意的是近年来内幕交易频发,数额之巨,形态之多样让人为之震惊。而中国规制内幕交易的法律虽然在不断的完善,但内幕交易司法实践中成效并不显著,或者因为许多的法律制度过于僵化和教条或者因为法律制度规定的过于粗略,在法律实践上难以操作,这一定程度上就导致政府执法部门的行政惰性。于是会出现一种恶性循环那便是法律制度的缺陷导致行政惰性的发生,从而导致内幕交易案件不断增加,投资者信心丧失,证券市场萎缩经济发展受到影响。为了避免这一恶性循环的发生,笔者试图通过比较中美内幕交易相关法律制度的异同,吸取美国打击内幕交易经验教训,借鉴其成功经验,来完善我国有关内幕交易的法律制度,以更好的打击内幕交易行为,维护证券市场的公平公正,保护投资者利益,繁荣我国经济。本文共分三个部分: 第一部分介绍了中美内幕交易法律制度的历史由来和早期有关内幕交易理论争议,让读者对中美内幕交易法律制度的历史有一个起码的了解,同时对内幕交易理论争议进行介绍让人们反思并认识到内幕交易的危害,指出打击内幕交易已成为世界各国的共识。第二部分主要分为三节内容:第一节内容主要阐述了中美对内幕交易内涵的的不同理解,从三个方面予以比较:内幕交易的主体、内幕交易的对象、内幕交易的行为方式;第二节内容主要对中美内幕交易监管机构的进行比较,指出中国证监会独立性不强,证券业协会和证券交易所自律组织对内幕交易监管作用没有充分发挥出来;第三节对比了中美内幕交易的三种法律责任:行政责任、刑事责任、民事责任,指出中国内幕交易在三种法律责任上的缺陷。第三部分主要阐述了笔者对完善我国内幕交易的几点建议。分三节内容,第一节介绍了中国内幕交易的现状与面临的困境;第二节阐述了中国出现内幕交易的历史、文化和社会原因;第三节笔者在立法上、司法上、执法上、社会监督上提出了几点完善我国内幕交易建议。
[Abstract]:The legal system of insider trading in the United States originated in the early 20th century and has been developed for nearly a hundred years. In this century, the ugly phenomenon of insider trading in the securities market has always been accompanied by the development of the securities market. However, the US government's activities to crack down on insider trading have not stopped for a moment. Due to the perfection of the legal system and the better convergence of the operational details of the specific enforcement of the law, the United States is regarded by all countries in the world as a model for the study of combating insider trading. In particular, the severity of the SEC's enforcement and the effectiveness of its enforcement have been praised by the world. China's securities market has just been established for only 20 years. During these 20 years, the securities industry has gained tremendous development. The scale of China's stock market has become one of the highest in the world. While the Chinese stock market is growing, there are also many problems. It is especially noteworthy that insider trading has occurred frequently in recent years, the amount of insider trading is huge and the variety of forms is shocking. However, although the law governing insider trading in China is constantly improving, the judicial practice of insider trading has not achieved significant results, or because many legal systems are too rigid and dogmatic, or because the legal system is too rough. It is difficult to operate in legal practice, which to some extent leads to the administrative inertia of government law enforcement departments. There will be a vicious circle that the defects of the legal system lead to the occurrence of administrative inertia, which leads to the increasing number of insider trading cases, the loss of investor confidence, and the impact on the shrinking economic development of the securities market. In order to avoid this vicious circle, the author tries to compare the similarities and differences between Chinese and American insider trading related legal systems, draw lessons from American experience in cracking down on insider trading, and draw lessons from its successful experience. In order to perfect the legal system of insider trading in our country, we can better crack down on insider trading, safeguard the fairness and justice of the securities market, protect the interests of investors, and prosper our economy. This paper is divided into three parts: the first part introduces the historical origin of the legal system of insider trading in China and the United States and the early disputes about the theory of insider trading, so that readers can have a basic understanding of the history of the legal system of insider trading in China and the United States. At the same time, introducing the theory controversy of insider trading makes people reflect on the harm of insider trading and point out that cracking down on insider trading has become a consensus in the world. The second part is mainly divided into three sections: the first section mainly expounds the different understanding of the connotation of insider trading between China and the United States, and compares it from three aspects: the subject of insider trading, the object of insider trading, the behavior mode of insider trading; The second section mainly compares the Chinese and American insider trading regulators, pointing out that the CSRC is not independent, and the securities industry association and the self-regulatory organization of the stock exchange have not given full play to the role of insider trading supervision. The third section compares three kinds of legal liability of insider trading in China and America: administrative liability, criminal liability and civil liability, and points out the defects of Chinese insider trading in three kinds of legal liability. The third part mainly elaborated the author to consummate our country insider trading several suggestions. The first section introduces the current situation and difficulties of insider trading in China; the second section expounds the history, culture and social reasons of insider trading in China; the third section introduces the author's legislation, judicature and enforcement of the law. Social supervision puts forward several suggestions to perfect insider trading in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D971.2;D922.287

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