论反欺诈原则在证券法中的确立——对诚实信用作为证券法基本原则的反思

On the Establishment of Anti-fraud Principle in Securities Law:A Reflection on Integrity and Trustworthiness as the Basic Principles of Securities Law

合目的性、普遍适用性、可诉性是证券法基本原则的构成要件。诚实信用作为证券法的基本原则,是我国民事基本立法在证券立法中的惯性体现。较之诚实信用,反欺诈原则揭示了证券市场的本然之理,贯穿于证券法的始终,并在域外司法实践中切实发挥着补充法律漏洞的作用。《证券法》修改应摒弃诚实信用对市场主体主观态度的伦理倡导,确立反对一切欺诈行为的客观理念,构建基本原则与具体规范相结合的反欺诈规则体系。

Righteous purpose, universal applicability and suability are important components in the basic principles of Securities Law. As one of the basic principles of Securities Law, integrity and trustworthiness are the continuation of our country＇s basic civil legislation in the realm of securities legislation. In compare with integrity and trustworthiness,anti- fraud principle reveals the very nature of securities market. It threads through the whole Securities Law, and is an important complement to the flaws of law in foreign judicial practice. The revision of Securities Law should abandon the belief to take integrity and trustworthiness as subjective moral guidance for market participants. Instead, Securities Law should rule against all forms of fraudulence, and form an anti-fraud principle that is a perfect synthesis of basic principles and specific norms.