海峽兩岸內(nèi)幕交易罪比較研究
發(fā)布時(shí)間：2018-07-31 05:23
【摘要】：內(nèi)幕交易是指內(nèi)幕人員和以不正當(dāng)手段獲取內(nèi)幕信息的其他人員違反法律、法規(guī)的規(guī)定,泄露內(nèi)幕信息,根據(jù)內(nèi)幕信息買賣證券或者向他人提出買賣證券建議的行為。證券市場上的內(nèi)幕交易是一種嚴(yán)重?fù)p害社會公共利益的行為,它不僅破壞證券市場的公平交易秩序,損害證券市場的運(yùn)行效率,增加市場運(yùn)行成本,而且會打擊投資者的信心,危害證券市場的安全,在極端情況下甚至?xí)䦟?dǎo)致市場崩潰。因此基于保障投資者利益與維護(hù)證券市場秩序的目標(biāo)價(jià)值,各國均通過不同形式的立法打擊內(nèi)幕交易行為。然而,內(nèi)幕交易行為并非一開始就在各國證券市場的禁止之列。在證券市場發(fā)展初期,人們普遍認(rèn)為在進(jìn)行證券交易前盡可能多的收集相關(guān)信息是一個(gè)精明的證券投資者所不可少的素質(zhì)之一。投資者正是通過先于他人掌握更多信息的優(yōu)勢而在證券市場上獲利。美國早期的立法者與司法者都認(rèn)為證券交易雙方都有權(quán)使用他們認(rèn)為合適的方法來獲取市場信息并以此來獲得利潤。因此在當(dāng)時(shí)利用內(nèi)幕信息獲取利潤的做法得到普遍認(rèn)可。但是,隨著證券市場的不斷發(fā)展,內(nèi)幕交易行為就像一顆毒瘤不斷的蠶食著證券市場的穩(wěn)定與和諧,各國國家紛紛制定法律法規(guī)禁止內(nèi)幕交易。中國大陸的證券市場起航于上世紀(jì)九十年代,雖然較其他國家和地區(qū)起步較晚,但發(fā)展勢頭迅猛。在這近三十年里,大陸地區(qū)對于內(nèi)幕交易行為的規(guī)制也是一個(gè)逐漸完備的過程,從最開始僅停留在行政處分和民事處罰到1997年刑法典正式設(shè)立內(nèi)幕交易罪,填補(bǔ)了刑事法律在這一方面的空白。在此之后,立法機(jī)關(guān)在刑法修正過程中又對該罪進(jìn)行了立法完善。然而,由于對內(nèi)幕交易罪中的許多問題理論上觀點(diǎn)還不一致,從而導(dǎo)致了實(shí)踐中認(rèn)識的差異,因此雖然大陸地區(qū)對于內(nèi)幕交易的法律規(guī)制在不斷完善,但在司法實(shí)踐中懲治內(nèi)幕交易罪的效率卻長期處于相對較低的水平。因此,明確相關(guān)爭議問題,為司法實(shí)務(wù)提供明確的理論指導(dǎo),是大陸地區(qū)內(nèi)幕交易罪理論研究的當(dāng)務(wù)之急。反觀臺灣地區(qū),其證券市場成立于50年代初期,證券立法以1954年的《臺灣證券商管理辦法》為起點(diǎn),至今已有60余年的發(fā)展歷史。確立臺灣地區(qū)現(xiàn)代證券市場管理法律制度的證券母法——《證券交易法》頒布至今也已40余年。從總體上看,我國臺灣地區(qū)的證券立法較大陸地區(qū)歷史悠久,立法體系亦更為完善。且經(jīng)過近幾年對于《證券交易法》的幾次重大修改,相關(guān)爭議問題得到了明確,司法實(shí)務(wù)界基于此出現(xiàn)了大量定罪判決,這對于大陸地區(qū)對于該罪定罪難的司法現(xiàn)狀無疑具有重大的借鑒意義。本文除引言和結(jié)語外,共分為四章,旨在從不同方面對兩岸內(nèi)幕交易罪的立法現(xiàn)狀進(jìn)行比較分析,剖析大陸地區(qū)對于內(nèi)幕交易罪相關(guān)立法的缺陷所在以及臺灣地區(qū)立法的可借鑒之處,并對大陸地區(qū)的相關(guān)立法提出改進(jìn)意見。本文第一章為兩岸規(guī)制內(nèi)幕交易罪法律制度歷史演進(jìn)及比較分析,第二、三、四章則分別從兩岸內(nèi)幕交易罪的主體、客觀要件、主觀方面進(jìn)行比較分析,總結(jié)兩岸立法在各方面的優(yōu)劣所在,并提出對于大陸地區(qū)立法的相應(yīng)改進(jìn)意見,以期大陸地區(qū)對于內(nèi)幕交易罪的規(guī)制愈加完善,實(shí)現(xiàn)理論研究和司法實(shí)務(wù)的協(xié)調(diào)統(tǒng)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.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D924.33
本文編號：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.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D924.33
【參考文獻(xiàn)】
相關(guān)期刊論文 前1條
1 程皓;;內(nèi)幕交易、泄露內(nèi)幕信息罪若干問題研究[J];法學(xué)評論;2006年04期
，本文編號：2154552
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