중·한 증권내부자거래 규제에 관한 법적 비교 = The Comparison on Legal Regulations of Insider Trading between China and Korea
저자
발행사항
청주 : 충북대학교, 2015
학위논문사항
학위논문(석사)-- 충북대학교 : 법학과(원) 상사법 2015. 2
발행연도
2015
작성언어
한국어
주제어
발행국(도시)
충청북도
형태사항
109 ; 26 cm
일반주기명
지도교수: 송종준
소장기관
Researchers and the society have been debating continuously about the insider trading which is associated with the stock market since the stock trading market emerged. Based on the dual characters of the insider trading functions, all countries are taking the insider trading as an important problem to be solved for the positive development of the stock market. They have also enacted a great deal of laws, regulations focusing on this problem.
Theoretically, stock insider trading indicates that the people who have access to influential insider information related to the stock price use the information to conduct stock trading, or let out the information to others, or suggest others to do stock trading based on the information. Stock insider trading is made up of three factors, insider personnel, insider information, and insider trading behavior. The insider trader is the main subject of insider trading, while the insider information is the objective basis. Using insider information to conduct stock market is the main way of insider trading. To some extent the insider trading promotes the vitality of the stock market, but it also seriously impairs the legal rights of the investors, damage the order of stock market trading and weaken the confidence of the investors. In general, it goes against the stability and development of the stock market.
Historically, Chinese stock market has experienced more than 20 years of development, while the stock market development in the other countries took over one hundred years. However, Chinese stock market stumbled along saturated with misconduct of stock trading. Because the functions of the regulation system of Chinese insider trading haven’t formed a proper system, efficient supervision of insider trading behaviors is not sufficient, which encourages people to take chance to pursue profits by using the insider information. Insider trading has various forms and becomes increasingly serious.
From the view of stock market operation, the negative influence of insider trading on the stock market is much greater than the positive effect on the vitality of the stock market. It is considered as the hard-to-cure disease of the stock market. Insider trading not only ruins the normal trading order of the stock market, but also invades investors’ legal rights, which makes the investors lose confidence in investment. Eventually it will lead to the shrink of the stock market in scale, so it becomes an important issue that the stock market supervision is facing. Chinese stock market is still growing and the system regulation of insider trading hasn't been fully developed. In addition, it lacks of mature legal system. All of these drawbacks lead to the expansion and indulgence of insider trading behaviors despite repeated prohibition. It also becomes the main issue of law enforcement field in Chinese stock market. In recent years, China has speeded up the macro planning of stock market regulation. Related legislation of insider trading is also well developed. In the Securities Law, the administrative responsibility, civil liability, and criminal responsibility of stock insider trading have been regulated. However, it still cannot prevent the insider trading subjects from insider trading. In fact, insider trading is a phenomenon that exists in the stock market of every country to some extent. Most of the countries have made rules and regulations related to insider trading to keep down the insider trading. Chinese stock supervision departments have also made continuous effort to regulate the common phenomenon in the stock market. It made some achievements, but because insider trading has strong confidentiality, it causes high cost of law enforcement. Generally, the prohibition effect of insider trading is not yet satisfactory. Holland Antwerp has set up stock exchanges since 16 century. Although the U.S.A started later than Holland, its effect of insider trading laws and regulations is much better than that of China, when compared to the related system of insider trading in China. Therefore, based on comprehensive consideration of the actual situation of Chinese stock market, China has to refer to related system in the developed countries, start from the early-stage precautions of insider trading, and decrease the cases of insider trading and its probability. It will be of great significance for the normal and orderly operation and development of the stock market.
In terms of the practice of legal regulation of insider trading, the legal regulation situation in Chinese stock market insider trading is still far from optimistic. Chinese stock market started late and the legal system is unsound, but China has improved the laws and regulations several times to clamp down on the insider trading. Compared to the static legal means, the dynamic means of law enforcement is still insufficient. In summary of the static and dynamic means of related regulation of insider trading in the some aspects like the information publish system and the insiders registration system, several problems can be found as follows. The information doesn't publish in time and in details. The range of insiders is undistributed and the registered contents are not clear. Thirdly, the confidential system of listed companies and intermediaries is not standardized. It lacks of report reward and guarantee mechanism. The standard of identification in the regulations is blurred. Related regulations and laws is not sound and coordinated well. The authority of law enforcement lacks of definition. The strength of penalties and punishments is not strong enough. All of these factors result in the difficulty of investigation and identification of insider trading case, the singularity of investigation methods, long period of investigation, unseasonal punishment, and weak social deterrent force.
Methodologically, first of all, in order to gain sustainable development in the stock market, ensure equal profit acquisition chance of the investors, maintain open, equal and fair market environment, improve the efficiency of resource allocation and reinforce the competitiveness of Chinese capital market, it should be made clear that insider trading is prohibited. This is the premise of the regulation of insider trading. Based on the current situation and the existing problems of Chinese stock insider trading regulation, the securities laws and regulations should be improved continuously in order to clamp down on the insider trading behaviors effectively, maintain the openness, equity and fairness of stock market and protect the legal rights of the investors. It is the fundamental knowledge of insider trading regulations. It is also the basis of the discussion of regulation of insider trading behaviors. We should realize objectively that countries with relatively mature and well developed capital market, like the U.S.A, European Union, the United Kingdom, Japan and Korea have established related laws, regulations and systems. These objective phenomena are great reference for the improvement of insider trading laws and regulation in China. These are also the basis and prerequisite of the comparison of insider trading laws and regulations. From the summary of related laws and regulations about insider trading in the stock market in the developed countries, it can be found that China has to make clear regulations and definitions in the aspect of the range of insiders and insider information, the range of authority, and the legal responsibility of insider trading and that the problems about the difficulties of discovery, investigation and identification in the investigation of insider trading case should be solved essentially. In order to improve the investigation efficiency and punishment effects, various kinds of social resources should be used fully. Routine supervision should be reinforced. Prevention in advance and monitoring in the case should be conducted well. Efforts also have to be made in punishment. Through all these measures, multi-dimensional and comprehensive insider trading supervision system will be realized. It is hoped that these measures and strategies can have positive influence on the healthy development of Chinese stock market.
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