证券内幕交易民事责任制度研究

发布时间：2018-09-04 06:27

【摘要】：内幕交易是证券交易市场上一种交易违法行为,这种违法行为的法律救济就是法律责任,主要是民事责任、行政责任和刑事责任。而我国现行证券法和相关法律法规对行政责任和刑事责任都作了不同程度的规定,但对最能直接体现对受害交易相对方进行补救功能的民事责任缺乏系统的规定。本文主要围绕证券内幕交易的民事责任问题展开了讨论。首先,本文探讨了构建内幕交易民事责任制度的法理基础,认为其民法基础是平等原则和诚信原则。内幕交易是与民法平等原则和诚信原则格格不入的,前者是构成内幕交易民事责任的第一民法基础,后者是第二民法基础;认为其商法基础是公开原则与披露原则,公开原则在证券交易中具有的很大作用,是构建内幕交易民事责任制度的第一商法基础,而内幕交易主要是掌握内幕信息并依内幕信息进行证券交易,它与披露原则背道而驰,是构建内幕交易民事责任制度的第二商法基础; 其次,对内幕交易民事责任主体和载体进行了界定。在主体方面,主要包括承担主体和追究主体。提出在我国确立证券内幕 WP=4 交易民事责任制度时,要在责任承担主体规制方面确立“整体分类”立法体例,并结合我国证券市场实际及证券立法对内幕人作了直接内幕人和间接内幕人的“本土化”确定,并相应的提出了追究主体为与内幕人从事交易并因此而受损的外幕人,即不知情的证券卖方或卖方。在载体方面,提出内幕交易民事责任发生的载体是内幕信息,内幕信息的确定是判断是否发生民事责任的关键,本文观察国外有关内幕信息的规定并同我国证券法相关规定作出比较,认为“成文法依据与典型判例参考相结合”是内幕信息的界定模式选择,在判断标准上,提出了实质性标准和秘密性标准。再次,本文重点分析了内幕交易民事责任的性质和归责原则。在性质上,认为内幕交易民事责任是一种侵权责任而不是违约责任,并论述了界定为侵权责任的意义;在归责原则上,提出了“二元主义”的体制选择,并根据对责任承担主体的不同分类,认为对直接内幕人的民事责任采用无过错责任原则,对间接内幕人的民事责任采用过错责任原则。最后,本文分析了证券内幕交易民事责任的构成要件和赔偿机制。在构成要件上,区别直接内幕人和间接内幕人而分别作出了三要件构成系统和四要件构成系统;内幕交易民事责任制度的一个直接功能就是通过赔偿对交易对方给予损害补救,本文在分析了构建内幕交易民事责任制度时应该克服的几个认识误区及确立方式之后,提出了民事责任中赔偿损失的计算规则及实现机制。
[Abstract]:Insider trading is a kind of illegal transaction in the securities trading market. The legal remedy for this illegal act is legal liability, mainly civil liability, administrative liability and criminal liability. But the current securities law and related laws and regulations of our country have made the different degree stipulation to the administrative responsibility and the criminal liability, but lack the systematic stipulation to the civil liability which can directly reflect the remedy function to the aggrieved transaction relative party. This paper mainly discusses the civil liability of securities insider trading. Firstly, this paper discusses the legal basis of constructing the civil liability system of insider trading, and holds that the civil law basis is the principle of equality and the principle of good faith. Insider trading is incompatible with the principle of equality in civil law and the principle of good faith. The former is the first civil law foundation of civil liability for insider trading, the latter is the second civil law basis, and the commercial law basis is the principle of openness and disclosure. The principle of openness plays a very important role in securities trading, and it is the first basis of commercial law to construct the civil liability system of insider trading, while insider trading is mainly to master insider information and conduct securities trading according to inside information, which runs counter to the principle of disclosure. It is the second commercial law foundation to construct the civil liability system of insider trading. Secondly, it defines the subject and carrier of civil liability of insider trading. In the aspect of subject, it mainly includes undertaking subject and investigating subject. When establishing the civil liability system of insider WP=4 trading in China, It is necessary to establish the "whole classification" legislative system in the regulation of the subject of responsibility, and make the localization of the insider and the indirect insider in the light of the reality of the securities market and the securities legislation in our country. Accordingly, the author puts forward that the main body of investigation is the outside agent, that is, the unsuspecting seller or seller of securities, who is engaged in trading with the insider and is damaged as a result. In the aspect of carrier, it is proposed that the carrier of civil liability for insider trading is insider information, and the determination of insider information is the key to judge whether civil liability occurs or not. This paper observes and compares the provisions of insider information in foreign countries with the relevant provisions of China's securities law, and holds that "combination of statutory law basis with reference to typical cases" is the choice of defining mode of insider information, and the judgment standard is as follows. The substantive standard and the secret standard are put forward. Thirdly, this paper analyzes the nature and liability principle of insider trading civil liability. In nature, the civil liability of insider trading is considered as a kind of tort liability rather than breach of contract liability, and the meaning of defining it as tort liability is discussed, and the system choice of "dualism" is put forward in the principle of imputation. According to the different classification of the subject of liability, the author thinks that the principle of no-fault liability is adopted for the civil liability of the direct insider and the principle of fault liability for the civil liability of the indirect insider. Finally, this paper analyzes the civil liability of securities insider trading elements and compensation mechanism. In terms of the constituent elements, the author distinguishes the direct insider from the indirect insider and makes a three-element constitution system and a four-element constitution system respectively. One of the direct functions of the civil liability system of insider trading is to remedy the damage to the other party by way of compensation. After analyzing several misunderstandings and ways of establishing civil liability system of insider trading, this paper puts forward the calculation rules and realization mechanism of compensation for losses in civil liability.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D912.28;D913

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