禁止内幕交易立法理念转换及其体系效应——从反欺诈到市场诚信

From Anti-Fraud to Market Integrity: the Transformation of Anti-Insider Trading Legislative Ideas and Its System Effects

基于反欺诈理念和市场诚信理念所建构的禁止内幕交易法律制度存在根本区别,前者注重保护投资者个人利益,后者则着眼于证券市场诚信的维护,进而导致二者在行为构成要件和法律责任设置等核心规则方面的重大差异。随着证券市场实践的深入发展,反欺诈立法难以克服的功能障碍和结构缺陷日益凸显,造成禁止内幕交易执法和司法实践面临诸多困境,故此逐渐为世界主要经济体所抛弃。顺应国际趋势,以市场诚信维护作为禁止内幕交易制度的立法理念并依此重构制度体系,或能实现逻辑自洽与体系完整,似为提升我国证券市场核心竞争力的应然选择。

There are basic differences between anti - insider trading legal system based on the legislative ideas of anti - fraud and market integrity, the former focusing on the protection of the interests of individual investors, while the latter attaching importance to the maintaining of the integrity of the securities market, thus leads to the significant divergences on the rules of composed elements and legal liabilities. With in - depth developments of securities market, the dysfunctions and structural defects of anti - fraud legislation have became more prominent, which have caused more difficulties for secur- ities law enforcement and judicature. Therefore, insisting on the market integrity idea and reconstituting anti - insider trading legal system may be the due choice of enhancing core competitiveness of China＇ s securities market and achieving logical consistency and institutional completeness.