证券违法与证券处罚间对称性失调研究——基于2014年中国证监会的实践
发布时间：2018-08-27 07:10
【摘要】：证券监管主要依托处罚对市场失范行为进行惩处和校正。行政处罚因之具有惩罚和规训的功能,其轻重宽严应与违法行为的规模和监管难度之间保持基本的对称性,避免不同处罚间畸轻畸重而降低执法公平感而对潜在违法者形成选择性激励。对2014年中国证监会所作83份《行政处罚决定书》的统计分析表明,尽管不同类型的证券违法行为在行为规模(涉案金额)与监管难度(查处时间间隔)方面存在显著差异,但由于罚金法定计算规则差异以及执法裁量权运用缺乏针对性,导致部分处罚与违法行为之间对称性失调,特别是对信息披露违法行为的处罚相对操纵市场和内幕交易等违法行为明显畸轻,而对自然人的处罚相对其他主体畸重。职是之故,证券立法应尽可能统一罚金计算规则,而证券执法也应顾及违法行为的类别化差异调整处罚幅度,以实现处罚与违法之间的对称。
[Abstract]:Securities supervision mainly relies on punishment to punish and correct market anomie. As a result, administrative punishment has the functions of punishment and discipline, and it should maintain the basic symmetry between its severity and severity, the scale of the illegal act and the difficulty of supervision. To avoid different penalties and to reduce the sense of fairness in law enforcement and to form a selective incentive for potential violators. The statistical analysis of 83 decisions on Administrative penalty made by China Securities Regulatory Commission in 2014 shows that although there are significant differences between different types of securities illegal acts in terms of behavior scale (amount involved) and regulatory difficulty (time interval between investigation and punishment), However, due to the difference of the legal calculation rules of fine and the lack of pertinence in the application of the discretion of law enforcement, the symmetry between some penalties and illegal acts is out of balance. In particular, the punishment for illegal information disclosure is significantly less severe than that for market manipulation and insider trading, while the punishment for natural persons is heavier than that for other subjects. Therefore, the securities legislation should unify the rules of fine calculation as far as possible, and the law enforcement of securities should also take into account the classification of illegal acts and adjust the range of punishment, so as to achieve the symmetry between punishment and violation.
【作者单位】： 四川省社会科学院;
【分类号】：D922.287
[Abstract]:Securities supervision mainly relies on punishment to punish and correct market anomie. As a result, administrative punishment has the functions of punishment and discipline, and it should maintain the basic symmetry between its severity and severity, the scale of the illegal act and the difficulty of supervision. To avoid different penalties and to reduce the sense of fairness in law enforcement and to form a selective incentive for potential violators. The statistical analysis of 83 decisions on Administrative penalty made by China Securities Regulatory Commission in 2014 shows that although there are significant differences between different types of securities illegal acts in terms of behavior scale (amount involved) and regulatory difficulty (time interval between investigation and punishment), However, due to the difference of the legal calculation rules of fine and the lack of pertinence in the application of the discretion of law enforcement, the symmetry between some penalties and illegal acts is out of balance. In particular, the punishment for illegal information disclosure is significantly less severe than that for market manipulation and insider trading, while the punishment for natural persons is heavier than that for other subjects. Therefore, the securities legislation should unify the rules of fine calculation as far as possible, and the law enforcement of securities should also take into account the classification of illegal acts and adjust the range of punishment, so as to achieve the symmetry between punishment and violation.
【作者单位】： 四川省社会科学院;
【分类号】：D922.287
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