Probes into Protective Legal Interests of Insider Trading crimeand The Specification of The Crime's Constitute Elements-A Comparison amongEU, USA, Taiwan, and Mainland China.
Date Issued
2012
Date
2012
Author(s)
Wang, Shang-Jen
Abstract
The related actions to the insider trading are labyrinthine, large in the amount of money and most often the suspects are celebrities, who get experts to “guide” them behind the scene, which makes it difficult for the prosecutors to carry out further investigation. In addition, article 157-1 of the Securities and Exchange Law in Taiwan is quite ambiguous, so the conviction-rate of the insider trading cases is always low. While the media declares the acquittal of the white-collar from time to time, it makes the public question the justice of judiciary, it is fair to say that the crime of insider trading is the most controversial one among all the accusation in the Crime Law. Often there are experts who think that national agencies should not use so much resource investigating these cases, which are difficult to be convicted, administrative responsibility or civil liability might be enough.
In fact, “Whether the insider trading should be decriminalization?” should be thought from the starting point of legal interest. If it does violate the legal interest of which is protectable in the Criminal Law, punishments are necessary. In contrast, if there is no legal interest protectable in the Criminal Law, there will be no necessities for punishments. Unfortunately, the doctrines and practices in Taiwan often fall into the mud of America’s concept of anti-fraud, which causes the endless debate between Market Theory and Relation Theory, which not only makes it difficult for the application of Common Law’s abstract concept on the concrete law in out country, furthermore, we also can’t see discussion about how is the law interest of anti-fraud in America.
If the necessity of the Criminal Law is admitted, the son principle of Nulla poena sine lege—the certainly of law principle, should also be tested. In the objective element of the law, we should know that since insider trading is under the scope of the Criminal Law, the law should be precise in advance. The court should not quote the abstract law theory in America only during judgment is being made, which makes public unable to foresee whether they will be punished for their acts.
Therefore, the writer not only analyzes the flaws in American’s anti-fraud theory but also makes reference with European’s theory and legislations. Hope it will benefit on the discovering for law interest in Taiwan’s insider trading and make the law more specifying, which helps public foresee the future before their action, and the judgment of court will also be more precise.
Subjects
Insider trading
insider dealing
economic crime
legal interests
crime's constitute elements
legal certainty.
SDGs
Type
thesis
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