内幕交易惩罚性赔偿制度的构建
马新彦内幕交易惩罚性赔偿制度的构建
Construction of the System of Punitive Damages of Insider Trading
期刊名称：《法学研究》
期刊年份：
作者：马新彦
单位：吉林大学法学院
中文关键词：内幕交易;惩罚性赔偿;损害填补
英文关键词：insider trading;punitive damages;damage compensation
中文摘要：
惩罚性赔偿的数额高于一般损害赔偿的数额。该高出的数额赔偿的是侵权行为对受害人权益和社会整体利益造成的无法用金钱衡量的无形损害。损害填补功能是惩罚性赔偿制度的正当性基础。内幕交易将内幕人的获益全部转嫁为一般投资者的损失，使证券市场失去公平与公正，使有意证券投资的人失去信心和投资的欲望，干扰证券的筹资功能、资本定价功能和资本合理配置功能，影响证券市场的健康发展。内幕交易造成的无法用金钱衡量的社会整体利益损害不仅给一般损害赔偿带来了理论难题和制度障碍，而且无法为一般损害赔偿所全部填补，须由惩罚性赔偿制度予以解决。当日、善意从事与内幕交易反向交易的投资人有权向内幕交易人请求其买入或卖出价格与消息公开后合理时间内收盘平均价格之间差额合理倍数的损害赔偿。
英文摘要：
Punitive damages substantially impose a higher amount of damages than the compensatory one. However, the facial “extra compensation” operates virtually to compensate the victims as well as the society as a whole, for their intangible loss hidden behind the conspicuous actual damage. As is well accepted, one of the fundamental functions of punitive damages is compensation, by means of which the goals of both deterrence and retribution are well served. Among several inherent chronic diseases of the stock market in China as well as in any other country, the worst and most hazardous is insider trading, which by depriving the other investors of their legitimate profits or shifting the tort-feasors’ imminent loss upon the other investors, exploits the general investors so severely as to unbalance the stock market, jeopardize not only the functions of fund collecting, capital asset pricing and capital disposing, but also the faith and incentive of the general investors. So grave is the intangible loss brought about by the insider trading that itself thereafter suffices the social damage, which is not adequately recognized and covered by both the traditional tort law theory and current law practice. The punitive damages can offer the most efficient and effective alternative to negate the impact brought by the threat of adversely substantiating the tortfeasor’s right to trample over the others, which couldn’t be more manifest in the cases of insider trading when the dominant tort-feasors exert their overwhelming influence upon the helpless general investors. To be specific, the victims are entitled to plead for damages as much as several times of the profit gained or the loss avoided by the insider traders. Only by this way can the law realign the balance, restore the order of the stock market, address the transaction security, promote the prosperity of the financial system, then eventually facilitate and protect the general investors.
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