短线交易收益归入制度功能的实证分析 兼谈《证券法》(2005)第47条的去留

The Function Analysis of the Disgorgement of Short-swing Profits and the Revise of Article 47 of the Securities Law 2005

2007年至2012年间沪深两市164例短线交易事件的公开报道中,仅有3例同时构成了短线交易和内幕交易。然而,由两种行为重合的概率极低的事实并不能直接推出有关短线交易收益归入制度无用的结论。毕竟,"说有(实际发生作用)易,说无难"。事实上,短线交易收益归入制度具有给当事人预先提醒的功能,使其"勿以恶小而为之",从而养成遵规守纪的习惯,避免犯下大错。此外,在评价法律制度的有效性时,考察的时段应尽量放宽。这不仅是避免朝令夕改的需要,也可以克服法律执行的滞后性带来的评价偏差。在评价标准上,应秉持实事求是的态度,从本国实践出发,而不应跟在别国后面亦步亦趋,以其有无某项制度或某部立法,作为我国应修改甚或废止某项制度或某部法律的理由。

In the 164 cases about the listed companies from Shanghai Stock Exchange and Shenzhen Stock Exchange reported publicly in 2007 to 2012, there are only 3 cases that involved into both short-- term trading and insider trading. However, from this point, it does not support the conclusion that the provision on short--term trading returns is useless. As an old saying says, it is easy to tell something that actually exists, hut hard to deny something that has never happened. As a matter of fact, the dis- gorgement system of short swing trading profits is to warn the relative parties in advance, to keep them away from the ＂small evils＂, so as to develop the habit of compliance disciplined and avoid material mis- take. And to evaluate the effectiveness of such legal system, a longer period of time is required, which could avoid the inconstant in policy and overcome the lag of law enforcement. To the evaluation criteria, it should be adhere to the attitude of seeking truth from facts, starting from China＇s practice rather than just following in the footsteps of some other countries.