An Empirical Analysis of the Disgorgement of Short Swing Profits of the Securities Exchange Act－ Focusing on the Constitutive Elements and Judicial procedure
Date Issued
2011
Date
2011
Author(s)
Ting, Cheng-Chieh
Abstract
The history of the disgorgement of short swing profits of the securities exchange act in Taiwan has been over 40 years. There are many articles discussing the abolishment of the rule and the design of the constitutive requirement; however, empirical analysises are relatively lacked. As a result, this article will try to make up for this probem, reviewing the constitutive requirement of the disgorgement of short swing profits and related litigation procedure through empirical methods.
I use the judicial yuan of the ROC law and regulations retrieving system to find out 31 court opinions. After reading and documenting all of these opinions, I use these information to analyze five dimensions of the disgorgement of short swing profits: subjects, objects, action, profits calculating, and others. The result of the research suggests what scholars discuss and argue frequently can hardly be found in court opinions, except for profits calculating issues. However, there is still some phenomenon worthes deeper researching.
When it comes to litigation, plaintiffs of the disgorgement of the short-swing profits cases have high winning percentages for their claims. Still the recovery rate is also pretty high. Beside, Securities and Futures Investors Protection Center definitely plays an important role in executing of the disgorgement of the short-swing profits, but some court opinios might weaken the power of it.
Empowering the agency to make regulation is my main suggestion against the constitutive requirement. When it comes to the execution of the disgorgement of the short-swing profits, I think maintaining current system, and revised related law to give more power to Securities and Futures Investors Protection Center may be a suitable way for Taiwan. Other issues are also discussed in this article.
Subjects
disgorgement of short-swing profits
empirical analysis
constitutive requirement
judicial procedure
Securities and Futures Investors Protection Center
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