对内幕交易民事责任制度的反思

2005年新修订的《证券法》规定了内幕交易等证券欺诈行为应当承担民事赔偿责任,但由于在内幕交易民事责任基础上的争议以及实践操作中困难等原因,使得内幕交易民事责任制度依旧薄弱。因此,有必要深入理解内幕交易民事责任制度完善的重要意义,切实解决其理论基础和实践操作难题,在新的时代背景之下,促进证券市场的健康发展及保护投资者权益。     

论我国内幕交易的现状及改革措施

内幕交易是证券市场最难规制的问题之一。我国证券市场的现状为交易手段由简单到复杂、违法数额巨大,交易主体以传统内部人为主、发案率暗数大,中介机构和上市公司联手,内幕交易与其他证券违法行为交织在一起等。在现状研究的基础上,文章提出建立严格规范的信息披露制度,优化上市公司治理结构,提升证券市场监管水平,加强内幕交易人民事责任承担立法的改革措施。     

内幕交易规制问题研究

内幕交易是指掌握内幕信息的人为获取利益或减少损失,利用内幕信息进行证券交易的行为。本文结合中外立法及司法实践,讨论我国证券交易中内幕交易的有关问题。     

美国证券内幕交易民事责任研究

内幕交易是证券市场中一个永恒的问题。对内幕交易行为追究民事责任有利于证券交易市场的正常运行。美国证券市场是世界上最发达的证券市场，它的证券法也最为完善。研究探讨了美国证券法中对内幕交易民事责任的规定，以求对完善我国相关法律制度有所借鉴。     

内幕交易行为的认定及其完善

某证券"乌龙指"事件再次引发了有关内幕交易的讨论。从内幕交易的认定来看,我国现行证券法针对行为主体、行为要件与内幕信息三个要素,但在实际应用中还有缺漏。反观英美,其有关内幕交易的认定较为完善,有诸多可供借鉴。在责任承担上,我国在行政责任与刑事责任方面较为完善,但在民事责任承担方面还需要将规定具体化,完善条文,并处理好各方利益的平衡。     

证券市场虚假陈述民事责任中的因果关系研究

虚假陈述是造成证券欺诈的核心与根源,也是我国证券市场的瘤疾,严重地侵害了广大投资者的权益。我国《证券法》拟在规范证券发行和交易行为,保护投资者的合法权益。而因果关系是相关民事责任的构成要件之一,它不仅属于侵权行为法基本规定内容,而且构成了其他几乎所有赔偿责任构成要件的基础。目前,我国关于证券虚假陈述民事责任中的因果关系较多借鉴了美国证券市场的立法经验,但是相对陈旧的民事侵权责任法理缺乏对规定的解释力,难以发挥司法实践的指导功能。     

我国证券市场内幕交易法律制度刍议

证券市场上的内幕交易行为,是各种证券欺诈行为中社会危害性最严重的一种,本文针对我国内幕交易行为的特点和证券立法的不足,联系国外发达国家关于内幕交易行为的立法状况,提出了加强和完善我国证券立法、严厉打击内幕交易行为的建设性意见:如扩大内幕交易主体的范围;完善上市公司的信息披露制度:完善上市公司收购和关联交易中的内幕交易规制;建立内幕交易的民事赔偿责任制度等.     

内幕交易、泄露内幕信息罪犯罪主体再探

《中华人民共和国刑法》第180条增设了内幕交易、泄露内幕信息罪之后,已有不少学者在理论上从犯罪构成的角度对该罪进行探析,其中也包括了对犯罪主体的研究。但近年来,证券市场出现了新的变化,证券投资基金逐渐成为证券市场的主力资金,本文在对国内外内幕交易、泄露内幕信息罪在犯罪主体方面的理论和立法实践进行评述的基础上,注重分析并指出应将与投资基金有关的内幕人员纳入本罪所规定的证券、期贷交易内幕信息的知情人员,以求能有助于立法上对该罪的规定更加完善。     

浅探我国证券市场内幕交易的规制

本文从国内外有关内幕交易的理论出发,立足我国证券市场发展的实际情况,对我国内幕交易的防治提出了些具有实践意义的举措。     

证券交易所异常交易处置制度的缺陷与完善——以光大证券乌龙指为例

以光大证券乌龙指事件为例对我国异常交易处置制度进行分析,认为高频交易为代表的新技术发展对监管提出了新的要求,传统异常交易理论中的"数额标准"和"价格范围标准"不能回应实践的需求。我国异常交易处置制度忽略了引发异常交易的"重大差错"事件以及禁止采取"取消交易"的措施,且未在引入"熔断机制"的基础上明确新技术条件下的"重大差错"的标准。未在立法层面规定"技术故障"、"暂缓交收"等,程序性制度几乎为一片空白,民事责任承担制度证券法几乎没有规定。有必要在结合证券市场现实的前提下借鉴欧美交易所的经验,完善异常交易处置制度。"重大差错"、"技术故障"在立法层面被规定为引发异常交易的事件,允许交易所在一定条件下采取"暂缓交收"、"取消交易"的措施。在交易所交易规则中明确重大差错等的含义,在引入"熔断机制"的基础上制定异常交易的标准,完善异常交易处置的程序性制度,明确交易所除非故意或者重大过失否则适用民事责任豁免的制度。     

Applying Ethics to Insider Trading

Insider trading has received a bad name in recent decades. The popular press makes it sound like an evil practice where those who engage in it are totally devoid of ethical principles. Yet not all insider trading is unethical and some studies have concluded that certain kinds of insider trading are actually beneficial to the greater investment community. Some scholars in philosophy, law and economics have disputed whether insider trading should be punished at all while others assert that it should be illegal in all cases. This paper explores the nature of insider trading and analyzes the issues to determine the positive and negative aspects of insider trading, and how policy should be changed. The best hope would be for studies to be made that isolate the individuals or groups who are fraudulently harmed by insider trading. If any such groups exist, then clearly worded legislation could be passed to prevent any fraud from being committed against these individuals and groups, while allowing non-fraudulent transactions to be completed without fear of prosecution. Until it can be clearly determined that someone is fraudulently harmed by insider trading, there should be no law or regulation restricting the practice, since such restrictions violate individual rights and will likely have a negative market reaction. Robert W. McGee is a professor at the Andreas School of Business, Barry University in Miami, Florida, USA. He has published more than 50 books and more than 400 scholarly papers in the fields of accounting, taxation, economics, law, philosophy and ethics. He holds doctorates in several fields, including accounting, economics, law and philosophy. He is an attorney and a certified public accountant (CPA).     

Insider trading laws and price informativeness in emerging stock markets: The South African case

We test the view that insider trading deters informativeness and, thereby, provide empirical evidence on the ramifications of insider trading legislation, particularly in an emerging market, that has hitherto received no research attention. Using the difference-in-differences identification strategy, we find that “effective insider trading law” improves stock price informativeness, a reflection of market efficiency, and that this efficiency is robust to both economic factors that affect market efficiency and the choice of control. Importantly, our results support the hypothesis that prohibition of insider trading elicits efficiency enhancement, particularly in emerging markets which are often characterized by weaker requisite institutional infrastructure than developed markets.     

What is really unethical about insider trading?

Insider trading is illegal, and is widely believed to be unethical. It has received widespread attention in the media and has become, for some, the very symbol of ethical decay in business. For a practice that has come to epitomize unethical business behavior, however, insider trading has received surprisingly little ethical analysis. This article critically examines the principal ethical arguments against insider trading: the claim that the practice is unfair, the claim that it involves a misappropriation of information and the claim that it harms ordinary investors and the market as a whole. The author concludes that each of these arguments has some serious deficiencies; no one of them by itself provides a sufficient reason for outlawing insider trading. This does not mean, however, that there are no reasons for prohibiting the practice. The author argues that the real reason for outlawing insider trading is that it undermines the fiduciary relationship that lies at the heart of American business. Jennifer Moore is an Assistant Professor in the Department of Philosophy and the Department of Business Administration at the University of Delaware. She teaches and does research in the areas of business ethics and business law. She is the author of several articles in business ethics and co-editor of the anthology, Business Ethics: Readings and Cases in Corporate Morality, published by McGraw-Hill.     

News media and insider trading profitability: An emerging country perspective

We test news media's disciplining by dissemination role and predictive power in insider trading related issues with a large and novel dataset on Chinese firms between 2008 and 2017. We find that more media coverage is associated with significantly lower level of insider trading profitability, which confirms the disciplining by dissemination role of media documented in the developed market. However, as a new evidence to the media and insider trading literature, we also find that media's negative tone has a positive correlation with future insider trading profitability, which is consistent with the media predictive power argument. In addition, we find that media's predictive power is amplified by a firm's good governance structure and low level of information asymmetry. Our study shows news media's effectiveness in predicting opportunistic insider trading in China.     

Where Should the Line Be Drawn on Insider Trading Ethics?

Finance ethics have drawn increasing attention from both government regulators and academic researchers. This paper addresses the issue of insider trading ethics. Previous studies on insider trading ethics have failed to provide convincing arguments and consistent results. In particular, the arguments against insider trading are based primarily on moral and philosophical grounds and lack empirical rigor. This study intends to establish and examine the relationship between the ethical issue and economic issue of insider trading. We argue that the ethics of insider trading is in essence an economic rather than a moral issue. It is so far not clear to what extent insider trading may increase or decrease shareholders wealth. Until then, we must take care to avoid over-regulating insider trading.     

Corporate governance and insider trading regulation efficiency

This paper aims to measure insider trading probability and the corresponding regulation efficiency in China. Based on an identification of influencing factors of corporate governance, the author explores the relationship among insider trading, corporate governance, and corporate value. The author also uses, based on high-frequency financial data, the probability of insider trading to measure the degree of insider trading in China’s security market. Results reveal that China’s security market has failed to punish and prohibit illegal insider trading effectively. However, the security market does exert certain constraints on insider-trading-ridden listed companies. The conclusion of this article is that by improving corporate governance, we can enhance the efficiency of insider trading regulation. Practical implications are also discussed.     

The Ethics of Insider Trading Revisited

Following Manne (1966, Insider Trading and the Stock Market (New York, Free Press)) we introduce a distinction between insider trading and market manipulation on the one hand and corporate insiders versus misappropriators on the other hand. This gives rise to four types of alleged inside transactions. We argue that the literature on insider trading has often targeted inside transactions type II, III and IV but that these arguments do not necessarily hold for type I transactions. We look for consequentionalist as well as non-consequentionalist arguments against type I transactions and demonstrate that these are hard to find. Throughout the article we refer extensively to the economic literature on insider trading in order to overcome a relative divide between the economic, legal, and philosophical discussion on insider trading.

The ethics of insider trading

Despite the fact that a number of economists and philosophers of late defend insider trading both as a viable and useful practice in a free market and as not immoral, I shall question the value of insider trading both from a moral and an economic point of view. I shall argue that insider trading both in its present illegal form and as a legalized market mechanism undermines the efficient and proper functioning of a free market, thereby bringing into question its own raison d'etre. It does so and is economically inefficient for the very reason that it is immoral. Thus this practice cannot be justified either from an economic or a moral point of view.

相似文献   

Shareholder authorized inside trading: A legal and moral analysis

This article evaluates inside trading from a legal and a moral perspective. From both of these points of view, the practice of inside trading is fraudulent whether it occurs in the traditional format or in the variation known as misappropriation. Fraud is a legal tort and a moral wrong consisting of a breach of duty that intentionally causes harm to persons that the insider can reasonably foresee. In defense against allegations of fraudulent inside trading, the defendant may argue that one or more elements of fraud are not evident, or, if the elements are clear, that the fraud was a justified means of avoiding some worse evil or of achieving some greater good. The article concludes that inside trading, under circumstances approved by shareholders, is neither fraudulent nor unfair. Bill Shaw is a Professor of Business Law at the University of Texas at Austin.     

The Issue of Insider Trading in Law and Economics: Lessons for Emerging Financial Markets in the World

Growth of the private sector and privatization of state companies around the world have led to the emergence of various stock markets, some of which are depicted by insider trading. Law literature uses the arguments of unfairness, breach of fiduciary rights and damage to others to define and rule against insider trading. Economic literature can be used to interpret insider trading from other perspectives. This study argues that the question of insider trading in developing markets can be resolved by the extent stock markets generate externalities and are public goods. It advocates structural changes in the developing markets and examines the conditions under which the Coase Theorem would work.