Study Of Insider Trading Civil Liability Regime

Inside dealing refers to infringing act in security dealing of insider who takes advantage of inside information to infringe on investor's legitimate rights and interests. It is congested with large quantities of illegal inside dealings in our just established securities market due to its irregularity, which greatly disrupts securities market principles of openness, justice, impartial and honesty. Affirming inside dealing is extremely difficult on account of the concealment of the inside dealing of itself and the complication of our country's special social surrounding. In addition, owing to the deviation in the thoughts about the legislation of securities and corresponding vacancy in civil liability of compensation, the protection of investor's legitimate rights and interests has been ignored just like in a vacuum zone. With the protection of investor's legitimate interests at the core, this thesis regards the perfection of the civil liability of our inside dealing as the aim. From a macro angel, the author penetrates the current situation and the damage of the inside dealing to securities market and probes into the social surroundings nourishing the inside dealing. And then, from a micro angel, the author makes a clear specification on the requisite elements of the inside dealing in order to improve the feasibility of affirming inside dealing. Then, at theory and institution level, the author deeply probes into the problems of substantive law and procedural law involved in improving our civil liability of the inside dealing. As for the researching method, the author mainly makes use of some ideas of comparative law and economic law, and especially draw on the experiences of the united states and Taiwan in which the civil liability of the inside dealing are a bit more improved. As a result, the author makes a whole design for our civil liability of the inside dealing.The thesis proceeds to hold that the protection of the investor's private right must be emphasized in the legal provisions of the inside dealing. Only on condition that the investor is bestowed with private procedural rights, could the system of civil compensation liability of the inside dealing be improved, would the strongest resistance be given to the inside dealing, which is just the basis of the securities law to protect the investor's interests. Therefore, on the problem of substantive law, firstly, constructive faultliability should be adapted in civil liability of inside dealing. If insider can testify that his damage is caused for defendant's infringement act and the defendant cannot prove his ignorance, the fact that the defendant has fault and bears civil liability is inferred in law. Secondly, the principle of constructive causation is a value use for reference in affirming causation between insider's act and investor's damage, which means appropriate causation can be inferred from that investor has good intentions and deals with insider simultaneously in the opposite direction. Thirdly, the range of damage compensation should be limited to insider's gained profit or avoided damage for taking in inside dealing. On the problem of procedural law, the author holds that representative action need to be further perfected so as to be more efficient in issue of inside dealing. In the issue of this type, the subjects of the right of action only are those investors who deal with insider simultaneously in the opposite direction. The rule of burden of proof inverted is suitable to the issue of inside dealing. In addition, the author suggests that the former procedure of administrative penalty should be set up in order to protecting investor's interests, preventing from abusing right of action and enhancing efficiency of justice.This thesis is divided into five parts. In the first part, the author makes a macro-examination of the bewildering inside dealing on our securities market and makes an inspection on its conception, nature, situation and damage. In the second part, the author reflects the reason of the absence of the civil lia...