“内幕信息”的认定标准和司法适用分析

Identification Standard and Judicial Application of “Insider Information”

我国刑事立法,司法解释和证券、期货等行政法律法规以及国外相关立法和司法实践都对内幕信息做了系列规定,通过比对它们的"共识重叠"部分,可将内幕信息界定为对证券、期货交易活动具有重大影响且尚未公开的信息。内幕信息的特征和认定标准应当是未公开性和重要性,而"相关性"和"确定性"不是内幕信息的特征和判断标准。依循权力分立、制衡的法治精神,行政权和司法权的界分决定了在行政犯(罪)领域,行政监管机关对内幕信息内容和性质认定的行政性判断应当从属于司法机关的司法性判断,前者仅仅是司法性判断的参考和借鉴,且司法机关的司法性判断应当具有独立性和终局性。

In accordance with Chinag criminal law, the latest judicial interpretation, the securities law and other administrative laws and regulations, and in the light of the financial legislation and the judicial experience of western developed countries, the insider information can be defined as ： information that has significant influence on securities and futures trading activities but has not yet been made public. Important information that has not been made public is insider information which has a significant or important impact on securities and futures trading activities especially the securities and futures prices. To recognize the publicity time and manner, inside information should be identified in accordance with the public standard and substantial public standard supplemented. The paradigm of importance ranges from the ＂objective criteria＂ to the principle of correspondence between subjectivity and objectivity. We should judge the importance degree of the specific information mainly from the position of general rational investors, and treat the influence on securities and futures market especially the securities and futures market price as a complementary judgment standard, but the influence is not necessarily subject to actual inevitable significant impact. ＂ Relevance＂ and ＂ certainty＂ are not the insider information ＂s judging criterion, and they are assimilated into the importance judgment. According to the separation of powers and the spirit of rule of law, the boundary between executive and judicial powers determine that the administrative supervision organs＇judgment should be subordinate to the judicial organ＇s in judging insider information content and nature. Administrative judgment serves as the reference to judicial judgment, and the judicial organs＇judgment should be independent and final. It is essential to the jurisdiction.