The Disgorgement Of Short-swing Trading

This paper puts forward the legal issues around disgorgement of short-swing trading andsome suggestions for further consummating of legislation, taking C&T(C&T TechnologyDevelopment Co., Ltd) suing Yan Lin as the starting point and analyzing the controversialfocuses of the case in detail. The case that C&T suing Yan Lin for short-swing tradingsecurities dispute is the first court sentenced case of short-swing trading securities dispute inChina. Legal issues, such as legislation purpose, main body, action structure and action objectof short-swing trading, involved in this court sentence is of great importance in formulatingjudicial interpretations of short-swing trading and establishing judicial standards ofshort-swing trading securities dispute in judicial practice.The three parts of the paper are as follows:The first part is the part of case introduction. And from this case, the controversialfocuses are brought forward: whether the defendant’s behavior accord with the objectiveelements of short-swing trading, whether the public auction in this case belongs to the “sale”category in article47of “Securities Law", whether the restricted shares can be the object ofshort-swing trading.The second part is the part of analyses and conclusions. According to the specificcircumstances of the case, this part analyses the controversial focuses one by one andintegrates the case with the theory, using the law theory, professional knowledge andbibliographical information of the short-swing trading disgorgement. On the basis of theanalysis, the conclusions of this paper are summarized: the defendant’s behavior don’t accordwith the objective elements of short-swing trading, the public auction in this case doesn’tbelong to the “sale” category in article47of “Securities Law", the restricted shares cannot bethe object of short-swing trading.The last part is the part of summary. This part is the summary of the formal two parts. Combining with the reality and legal environment in China, it puts forward legal suggestionsfor judicial practice of short-swing trading disgorgement, which make the system ofshort-swing trading disgorgement play its due role.