| Since China’s securities market was established 1990s, it has made great achievement with rapid development, provides a strong financial support for economic development and has played an important role in raising capital, optimizing the allocation of resources. But at the same time, it has also accompanied by market manipulation, insider trading and false statements that harm the interests of inventors and undermine the market order of fair trade. In response to market failure, a strengthen market supervision is essential.This paper will refer Everbright Securities Oolong incident as an opportunity, the anti-insider trading as the center, and discuss the recognized standards and the civil liability. With the case, summary the insufficient of related aspects of anti-insider trading and put forward my views by comparative the legislation and practice at home and abroad, pointing at the inside information, use requirements, subjective aspects and civil liability of insider trading related to Everbright Securities Oolong.The full text is divided into four parts. The first part narrates the event of Everbright Securities Oolong. The second part gives discussion on the inside information, use requirements of the standard of insider trading with the case, The Third part discusses the function and the causation of the civil liability of insider trading. The fourth part put forward suggestions.The paper mainly use the comparative analysis method, the logic analysis method and the case study method, comparing with the legislation and cases of the USA, whose securities market and anti-insider trading system is more developed and perfected, in order to find out the common legal principle of anti-insider trading in our country and the experience that applies to the supervision of our securities market. The tradition of case law in the USA, on the one hand, helps compensate for the lack of legislation, so that the theory developed from the cases can be applied to all kinds of situations of insider trading, on the other hand exert the judge’s discretion. The inside information hasn’t been divided into internal and external, but in fact, the market information has been determined as inside information by the case. But the several kinds of inside information listed in the Securities Law of China are internal information, this makes it lacking of legal basis when the CSRC expand the interpretation of inside information according to the enabling clause. Subjective elements is an important basis for judging whether a behavior is illegal, but due to the importance of the fight against insider trading and the difficulty of the proving of the element of using, it’s common to apply fact presumption and law presumption. However, I think, with the improvement of the technology of legislation and the perfection of the anti-insider trading regime, the proof of the element of using can make the attack on insider trading more accurate and the study of the elements of insider trading helps restore the nature of insider trading. Civil liability is one of the most important and difficult points in the anti-insider trading system. A large number of scholars have discussed around the function and the causality. The author try to divide insider trading into fraud insider trading and non-fraud insider trading, from a new point of view, according to the status and obligations of the subject of insider trading and the subjective aspects, referring to the USA’s anti-fraud theory and the EU’s equitable order theory of anti-insider trading, and assume this as a basis for whether undertake civil liability. |
PDF Full Text Request