内幕信息形成时间判断规则研究

The Judgment Rule of Insider Information Formation Time

确定内幕信息形成时间是内幕交易性质与数额认定的基础。最新内幕交易犯罪司法解释并未解决内幕信息形成时间判断的核心难题与实践障碍。立法既要根据资本市场现实对内幕信息形成时间适度提前认定,又要在评估高风险信息基础上排除其具有重大性的可能。并购重组是内幕交易重灾区,有必要深度分析并购重组中内幕信息的形成规律,建构类型化司法判断规则,并以此为鉴逐步研究其他类型的内幕信息形成时间认定规则。此外,判断内幕信息形成时间应以更为接近个案专属特征的指导性案例细化例外情形。

The determination of the time when the insider information has been in shape is the foundation of qualitative and quantitative analysis of the crime of insider trading. The recently published judicial interpretation of insider trading did not solve the core and difficult problems underlying the judgment of the time when the insider information has been in shape. The estimation of this time should be moderately advanced. But the possibility of materiality should be ruled out on the basis of the high risk nature of the nonpublic information. Mergers and acquisitions （M ＆ A） are the severely affiliated area of the crime of insider trading. It is necessary to analyze the formation pattern of the insider information in the process of M ＆ A intensively, on which the typed judicial rules can be established. And this can provide experiences to determine the time of formation of other types of insider information. The exceptional rules should be induced from the directive precedents which can reflect the exclusive characteristics of each piece of insider information.