证券内幕交易民事责任功能质疑
耿利航证券内幕交易民事责任功能质疑
Doubts on the Function of Insider Trading Civil Liability
期刊名称：《法学研究》
期刊年份：
作者：耿利航
单位：中央财经大学法学院
中文关键词：内幕交易;因果关系;民事责任
英文关键词：insider trading;causation;civil liability
中文摘要：
在内幕交易中，内幕人的交易行为和公司内部信息不公开实际上有不同的受害者。内幕交易行为和投资者损失之间通常没有因果关系，投资者所遭受的损失主要来自市场信息风险。如果法律在技术上允许因果关系推定以便利民事诉讼，就应当限制内幕交易人的赔偿责任，没有理由将投资者的市场决策风险转嫁给事后被发现的内幕交易者。受调查能力等限制，民事诉讼在协助执法、威慑内幕交易方面的功能是极其有限的。通过不同方式加强公共尤其是行政执法是更有效率的政策选择。
英文摘要：
Insider trading is one of the major illegal financial frauds throughout the development of Chinese security market. Paragraph 3, Article 76 of the Security Law of the People’s Republic of China, amended in October 2005, provides the civil liability of insider trading. However, the questions whether there exists causation between insider trading and the loss suffered by investors, what category of investors suffer loss and how much loss they suffer remain uncertain and controversial. Many scholars and professionals in China tend to strengthen the civil liability and provide relief to investors to save their confidence. In their opinion, insider trading civil liability is also a kind of private enforcement method, which can combat and deter security frauds by requiring the law-breakers to pay a big amount of compensation. They insist that the Supreme People’s Court should promulgate judicial interpretation on the civil liability of insider trading as soon as possible and presume the causation between insider trading and the loss suffered by investors, thus remove the chief obstacle of civil action on insider trading.This thesis is trying to deliberate and cast doubts on the compensating and deterring function of civil compensation liability of insider trading, the focus and starting point of which is the causation between insider trading and the loss suffered by investors. There are two different types of victims in insider trading, namely victims due to the insiders’transaction behavior, and victims due to the undisclosed inside information. Investors are not actually deceived, induced or misled by insiders. There are no causality between insiders’transaction behavior and the loss claimed by the contemporaneous traders, since such loss comes largely from the risk of market information asymmetry. Technically speaking, even if it is possible to presume causation in order to make civil action convenient, the compensation liability of insiders should also be limited. There is no reason to transfer the decision-making risk which should be undertaken by investors to those insiders who are just detected after the normal transaction. Moreover, due to its born limitation, civil action has little effect in terms of assisting law-enforcement and deterring insider trading. Therefore, the only result of encouraging civil action may increase the cost of parties and courts and get no more benefits. The more effective policy solution is to strengthen the information disclosure system and the public (especially administrative) enforcement by all possible means.
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