建構我國內線交易之規範：從禁止內線交易所欲保護之法益切入

曾宛如

doi:10.6199/NTULJ.2009.38.01.06

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P253 - 310

Social Sciences > Law

DOI： 10.6199/NTULJ

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建構我國內線交易之規範：從禁止內線交易所欲保護之法益切入

Restructuring Taiwan's Insider Dealing Regulation: From the Perspective of Protected Legal Interests

曾宛如(Wang-Ruu Tseng)

臺大法學論叢； 38卷1期 (2009 / 03 / 01) ， P253 - 310

繁體中文 DOI： 10.6199/NTULJ.2009.38.01.06

內線交易；詐欺；市場誠信市場法益、市場秩序；內線消息；內部人；忠實義務信賴關係；私取理論；損害賠償；即時揭露；消息傳遞者；消息受領者； insider dealing ； fraud ； market integrity ； inside information ； insider ； fiduciary duty ； the misappropriation theory ； damages ； immediate disclosure ； tipper ； tippee

Abstract │ Reference (46) │ Times Cited (30) │ Altmetrics

Abstract 〈TOP〉

Parallel Abstract 〈TOP〉

Article 157-1 of Taiwan's Securities and Exchange Law is generally regarded as the main source of regulation in relation to insider dealing. When compared with the American law, it seems to be correct. However, Article 20 of the Securities and Exchange Law, which is also transplanted from §10(b) of the American Securities Exchange Act of 1934, the main enforcement tool for punishing insider dealing in the United States, is entirely ignored in the analyses of Taiwan's insider dealing. This phenomenon is quite bizarre. Besides, Article 157-1 is not self-evident; a tremendous amount of interpretation is required to arrive at a clear understanding in terms of whether or not the tipper should violate his (her) fiduciary duty in order to transfer the derivative duties to the tippee.
Before answering the above-mentioned questions, an important prerequisite is to identify what the legal interests of the insider dealing regulation in Taiwan are. Do we believe in the theory of anti-fraud or the protection of market integrity? The choice will affect the scope of the insiders, the objects covered by insider dealing, the place where insider dealing takes place, the causation, the need for damages and the defenses. As a result, it is even more important to re-consider the purpose of the insider dealing regulation before making any further amendments to it. This will help us re-build the rules and establish a consistent set of theories.

Reference ( 46 ) 〈TOP〉

曾宛如(2007)。從英國金融服務暨市場法論金融服務之整合：以律師所受規範為例。政大法學評論，96，99-145。
連結：
Aggarwal, Shalini M.(2003).Survey: From the Individual to the Institution: The SEC'sEvolving Strategy for Regulating the Capital Market.COLUMBIA BUSINESS LAW REIVEW,2,581.
Alcock, Alistair(2007).Five Years of Market Abuse.COMPANY LAWYER,28(6),163.
Athanassiou, Phoebus(2006).The New Market Abuse Regime in Cyprus: A Critical Review.JOURNAL OF INTERNATIONAL BANKING LAW AND REGULATION,21(2),69.
Avgouleas, Emilios(2005).A Critical Evaluation of the New EC Financial-Market Regulation: Peaks, Troughs, and Road Ahead.TRANSNATIONAL LAWYER,18,179.

Times Cited ( 30 ) 〈TOP〉

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