美国“幌骗”案例的监管处罚与司法审判实践

The Legislation and Regulation of Recent Spoofing Cases in United States of America

近年来,伴随典型幌骗(Spoofing)案例在媒体聚光灯下的不断曝光,"幌骗"这一名词引起业界和社会公众的广泛关注。美国证券期货监管机构和司法机构对幌骗这一依托程序化交易技术的新型违法行为,已进行了多年的监管和立法方式探索。《多德弗兰克法案》生效至今,美国证券期货市场有近十起涉及幌骗行为的行政处罚或司法诉讼。本文对美国期货市场禁止幌骗的法律演变历程进行了梳理,论述了促使美国针对幌骗行为单独修法立规的原因;整理了美国监管机构和法院处罚的典型幌骗案例;从规制幌骗行为的立法方式、监管方式、认识层面等角度总结了美国监管和司法机构应对幌骗行为的经验,并对我国如何应对幌骗行为的立法和监管层面提出了建议。

With typical spoofing cases frequently appearing in mass media recently, the term spoofing has attracted wide attention from both related industry and the public. U.S. securities and futures regulators and judicial branches have been exploring in regulating and legislating over such new illegal behavior based on programmable trading technologies for many years. Ever since Dodd-Frank Act took effects, there are almost ten administrative sanctions or lawsuits concerning spoofing behavior in U.S. securities and futures market. This article firstly provides an overview of how the law prohibiting spoofing behavior evolves in U.S. securities and futures market, specifying the reasons why American government would legislate over spoofing behavior separately. Then this article discusses a few typical cases on spoofing by U.S. regulators and courts. It finally summarizes the experiences how U.S. regulators and courts understand such behavior, legislate over and regulate spoofing. This article also provides advices on how China could deal with spoofing behavior in terms of legislation and regulation.