中韩证券内幕交易民事赔偿制度比较研究 - 以判例为中心 -

Abstract

When the insider of listed company used the inside information to trade for his personal interest, it will lead to the corporate information disclosure to delay and affecting the investor to wrong judgment and other results. Such acts will loss the investor’s trust in the market and hindering the development of the capital market. The significance of the civil compensation system of insider trading lies in when the insiders of listed companies use the undisclosed information to buy and sell the financial investment products and caused investors to loss. It is necessary to bear the corresponding civil liability compensation for the loss of the investors and thereby inhibiting such behaviors. This article will be comparing and analyzing the insider trading differences of the legal provisions and judicial practice of the civil compensation system between China and Korea and trying to improve the views of China’s legislative work. Before describing the civil compensation system for insider trading in China and Korea, article Ⅱ will focus on introducing the insider trading evolution of United States as an example, and then discussing its concepts and related theories in order to understand the legal regulation for insider trading better. This article Ⅲ will take the case as the center to introduce insider trading legislation of China and Korea in the elements of responsibility, form and other content and focusing on analysis the “Recovery of Short Swing Profits”. Firstly, introduces the legislative evolution of insider trading in China and Korea. Then then describes the specific content of the two countries legislation. And give the cases to introduce the specific performance of the laws of the two countries. Finally, introduce the United States of the relevant legal provisions of the United States as reference. This article Ⅳ will compares the civil compensation system of insider trading between China and Korea and reference the US experience to improve the Chinese legislative system. In the legislative technology, such as the expression of the Korean Capital Market Act Article 174, paragraph 1 “the outsider exercised his power or perform their duties Know the insider information”, only one clause to cover the need to express the content that worth to learning. On the insider scope of the set how to define the “illegal access to insider information” of Chinese law and it is recognized as insider trading is questionable. On Korean law the “the people of obtain undisclosed important information” and “job-related” joint statement can fully solved how to identify the main problem. On the causal relationship, the securities law of China does not make fundamental provisions on the causal relationship. But the expression as the “other losses associated with the transaction” of Korean law gives the judge a certain discretion. And in the trail practice of Korea, Korea has accumulated a large number of cases, and it played the role of inhibition of insider trading. With regard to avoidance losses, for the “illegal income” of Chinese law should be expanded to explain and including “avoidance losses”. But considering the complexity of judicial practice of china, it seems appropriate to include “avoidance losses” in the articles. On the “Recovery of Short Swing Profits”, legislation of China on the provisions of the object has serious legislative shortcomings. While the short swing exception to consider is not enough. The above-mentioned problems it is necessary to solve. The capital market of China cannot be regarded as a sound investment market. In the regulatory authorities to strengthen supervision, at the same time the insider trading is happening more and more frequently. Although the regulatory and policy of government can influence the development of the securities market, the legislature to develop appropriate legal and regulatory policies, and regulators and the judiciary to strictly enforce the regulation of the market is to save the market.