海峡两岸内幕交易罪比较研究
发布时间：2018-07-31 05:23
【摘要】：内幕交易是指内幕人员和以不正当手段获取内幕信息的其他人员违反法律、法规的规定,泄露内幕信息,根据内幕信息买卖证券或者向他人提出买卖证券建议的行为。证券市场上的内幕交易是一种严重损害社会公共利益的行为,它不仅破坏证券市场的公平交易秩序,损害证券市场的运行效率,增加市场运行成本,而且会打击投资者的信心,危害证券市场的安全,在极端情况下甚至会导致市场崩溃。因此基于保障投资者利益与维护证券市场秩序的目标价值,各国均通过不同形式的立法打击内幕交易行为。然而,内幕交易行为并非一开始就在各国证券市场的禁止之列。在证券市场发展初期,人们普遍认为在进行证券交易前尽可能多的收集相关信息是一个精明的证券投资者所不可少的素质之一。投资者正是通过先于他人掌握更多信息的优势而在证券市场上获利。美国早期的立法者与司法者都认为证券交易双方都有权使用他们认为合适的方法来获取市场信息并以此来获得利润。因此在当时利用内幕信息获取利润的做法得到普遍认可。但是,随着证券市场的不断发展,内幕交易行为就像一颗毒瘤不断的蚕食着证券市场的稳定与和谐,各国国家纷纷制定法律法规禁止内幕交易。中国大陆的证券市场起航于上世纪九十年代,虽然较其他国家和地区起步较晚,但发展势头迅猛。在这近三十年里,大陆地区对于内幕交易行为的规制也是一个逐渐完备的过程,从最开始仅停留在行政处分和民事处罚到1997年刑法典正式设立内幕交易罪,填补了刑事法律在这一方面的空白。在此之后,立法机关在刑法修正过程中又对该罪进行了立法完善。然而,由于对内幕交易罪中的许多问题理论上观点还不一致,从而导致了实践中认识的差异,因此虽然大陆地区对于内幕交易的法律规制在不断完善,但在司法实践中惩治内幕交易罪的效率却长期处于相对较低的水平。因此,明确相关争议问题,为司法实务提供明确的理论指导,是大陆地区内幕交易罪理论研究的当务之急。反观台湾地区,其证券市场成立于50年代初期,证券立法以1954年的《台湾证券商管理办法》为起点,至今已有60余年的发展历史。确立台湾地区现代证券市场管理法律制度的证券母法——《证券交易法》颁布至今也已40余年。从总体上看,我国台湾地区的证券立法较大陆地区历史悠久,立法体系亦更为完善。且经过近几年对于《证券交易法》的几次重大修改,相关争议问题得到了明确,司法实务界基于此出现了大量定罪判决,这对于大陆地区对于该罪定罪难的司法现状无疑具有重大的借鉴意义。本文除引言和结语外,共分为四章,旨在从不同方面对两岸内幕交易罪的立法现状进行比较分析,剖析大陆地区对于内幕交易罪相关立法的缺陷所在以及台湾地区立法的可借鉴之处,并对大陆地区的相关立法提出改进意见。本文第一章为两岸规制内幕交易罪法律制度历史演进及比较分析,第二、三、四章则分别从两岸内幕交易罪的主体、客观要件、主观方面进行比较分析,总结两岸立法在各方面的优劣所在,并提出对于大陆地区立法的相应改进意见,以期大陆地区对于内幕交易罪的规制愈加完善,实现理论研究和司法实务的协调统一。
[Abstract]:Insider trading refers to the act of insider trading and other persons who obtain insider information by improper means, breach of law, regulations, divulge insider information, buy and sell securities according to the insider information, or put forward proposals for buying and selling securities to others. Insider trading in the stock market is a serious damage to the public interest. It will destroy the fair trading order of the securities market, damage the efficiency of the securities market, increase the operating cost of the market, and will blow up the confidence of the investors, harm the security of the securities market, and even cause the market collapse in extreme cases. Therefore, all countries have passed the target value based on the protection of the interests of investors and the maintenance of the order of the securities market. Different forms of legislation combating insider trading. However, insider trading is not a prohibition in the stock market at the beginning. In the early stages of the development of the securities market, it is generally believed that the collection of relevant information as much as possible before securities trading is one of the essential qualities of a smart card investor. The early American legislators and judiciary believed that both sides had the right to use the right way to obtain the market information and gain profits by the early American legislators and the judiciary. But, with the continuous development of the securities market, the insider trading behavior is like a tumor that continues to encroach on the stability and harmony of the securities market. Countries have formulated laws and regulations to prohibit insider trading. China's mainland securities market started in the 90s of last century, although it started later than other countries and regions, but it is developing. In recent thirty years, the regulation of insider trading in mainland China is also a gradual process. From the beginning, the crime of insider trading was formally established in the administrative sanction and civil punishment to the 1997 penal code, which filled the gap in the criminal law. After that, the legislature amended the criminal law. However, this crime has been perfected in the legislation. However, because of many problems in the theory of insider trading is not consistent in theory, which leads to the difference in practice. Therefore, although the legal regulation of insider trading is constantly improved in the mainland, the efficiency of punishing insider trading in the practice of judicial practice is in a long time. For the lower level, it is an urgent task to clarify the relevant disputes and provide a clear theoretical guide for the judicial practice. In the Taiwan region, its securities market was founded in the early 50s, and the securities legislation was starting from the "management method of the Taiwan certificate broker" for more than 60 years in 1954. It has been more than 40 years since the promulgation of the securities trading law, the securities trading law of the modern securities market management in Taiwan. In general, the securities legislation in the Taiwan region of China has a long history and the legislative system is more perfect. And several major amendments to the securities trading law have been made in recent years. There are a lot of convictions in the judicial practice, which is undoubtedly of great significance to the judicial status of the convicted crime in mainland China. In addition to the introduction and conclusion, this article is divided into four chapters, which aims to compare the legislative status of the crime of insider trading on both sides of the Taiwan Straits. Analyze the defects of the crime related legislation in mainland China and the reference of the legislation in Taiwan, and improve the relevant legislation in mainland China. The first chapter is the historical evolution and comparative analysis of the legal system of the crime of insider trading on the two sides of the Taiwan Straits. The second, third and the four chapters are from the insider trading of the two sides of the Taiwan Straits. The subject, objective and subjective aspects of the crime are compared and analyzed, and the advantages and disadvantages of the cross-straits legislation in all aspects are summarized, and the corresponding suggestions for improving the legislation of the mainland are put forward so as to improve the regulation of the crime of insider trading in the mainland and realize the coordination and unification of the theoretical research and the practice of the law.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.33
本文编号：2154552
[Abstract]:Insider trading refers to the act of insider trading and other persons who obtain insider information by improper means, breach of law, regulations, divulge insider information, buy and sell securities according to the insider information, or put forward proposals for buying and selling securities to others. Insider trading in the stock market is a serious damage to the public interest. It will destroy the fair trading order of the securities market, damage the efficiency of the securities market, increase the operating cost of the market, and will blow up the confidence of the investors, harm the security of the securities market, and even cause the market collapse in extreme cases. Therefore, all countries have passed the target value based on the protection of the interests of investors and the maintenance of the order of the securities market. Different forms of legislation combating insider trading. However, insider trading is not a prohibition in the stock market at the beginning. In the early stages of the development of the securities market, it is generally believed that the collection of relevant information as much as possible before securities trading is one of the essential qualities of a smart card investor. The early American legislators and judiciary believed that both sides had the right to use the right way to obtain the market information and gain profits by the early American legislators and the judiciary. But, with the continuous development of the securities market, the insider trading behavior is like a tumor that continues to encroach on the stability and harmony of the securities market. Countries have formulated laws and regulations to prohibit insider trading. China's mainland securities market started in the 90s of last century, although it started later than other countries and regions, but it is developing. In recent thirty years, the regulation of insider trading in mainland China is also a gradual process. From the beginning, the crime of insider trading was formally established in the administrative sanction and civil punishment to the 1997 penal code, which filled the gap in the criminal law. After that, the legislature amended the criminal law. However, this crime has been perfected in the legislation. However, because of many problems in the theory of insider trading is not consistent in theory, which leads to the difference in practice. Therefore, although the legal regulation of insider trading is constantly improved in the mainland, the efficiency of punishing insider trading in the practice of judicial practice is in a long time. For the lower level, it is an urgent task to clarify the relevant disputes and provide a clear theoretical guide for the judicial practice. In the Taiwan region, its securities market was founded in the early 50s, and the securities legislation was starting from the "management method of the Taiwan certificate broker" for more than 60 years in 1954. It has been more than 40 years since the promulgation of the securities trading law, the securities trading law of the modern securities market management in Taiwan. In general, the securities legislation in the Taiwan region of China has a long history and the legislative system is more perfect. And several major amendments to the securities trading law have been made in recent years. There are a lot of convictions in the judicial practice, which is undoubtedly of great significance to the judicial status of the convicted crime in mainland China. In addition to the introduction and conclusion, this article is divided into four chapters, which aims to compare the legislative status of the crime of insider trading on both sides of the Taiwan Straits. Analyze the defects of the crime related legislation in mainland China and the reference of the legislation in Taiwan, and improve the relevant legislation in mainland China. The first chapter is the historical evolution and comparative analysis of the legal system of the crime of insider trading on the two sides of the Taiwan Straits. The second, third and the four chapters are from the insider trading of the two sides of the Taiwan Straits. The subject, objective and subjective aspects of the crime are compared and analyzed, and the advantages and disadvantages of the cross-straits legislation in all aspects are summarized, and the corresponding suggestions for improving the legislation of the mainland are put forward so as to improve the regulation of the crime of insider trading in the mainland and realize the coordination and unification of the theoretical research and the practice of the law.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.33
【参考文献】
相关期刊论文 前1条
1 程皓;;内幕交易、泄露内幕信息罪若干问题研究[J];法学评论;2006年04期
，本文编号：2154552
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