從比較法觀點論內線交易豁免規定之可能性

Abstract

我國內線交易為法定刑至少3年以上10年以下之重罪，加上民國94年至97年間上市櫃公司遭檢調大舉搜索，包括94年起訴的新光案、勁永案，95年台開案，96年明碁案、英華達案及97年鈺創案、新普案，讓股市聞查必跌，而近來新光內線交易案無罪定讞、明基案和力晶併購旺宏時爆發的內線交易案第一審皆判無罪，除考驗檢方威信外，近年來產業界要求增訂內線交易豁免條款要求如浪席捲而來，本文認為，為避免我國內線交易規範密度過於嚴苛未能因應企業現實需要，宜訂定豁免條款加以排除，從此項觀點出發，本文首先介紹我國法上內線交易立法及學說，進而就內線交易判決加以實證研究，從而發現若干可能增訂豁免條款之空間，復佐以美國、日本及歐洲針對豁免條款之立法例及實務之見解，汲取比較法上之養分，在我國立法、學說及實務針對內線交易之見解上，重新建構我國內線交易之豁免條款。

We have severe liability for people who violate insider trading law. Perpetrators will be punished by imprisonment for no less than three years and no more than ten years, and in addition thereto, a fine which ranges from of no less than NT$10 million to no more than NT$200 million. Moreover, during 2005 to 2008, many companies whose stock are listed on the stock exchange or traded over the counter were suspected of engaging in insider trading and were searched by police and prosecutor. In 2005, prosecutor brought suit against Shin Kong Financial Holding Company and Power Quotient International Co. LTD for insider trading. In 2006, Taiwan Land Development Corporation’s criminal charge was proceeding. In 2007, insider-trading scandals about BenQ Company and Inventec Appliances were burst out. In 2008, Integrated Circuits Company and Simplo Technology Company were investigated and accused of similar charges. Every case mentioned above resulted in turmoil in the stock market. However, in the Shin Kong, BenQ and Powerchip Technology case, the court acquitted those defendants of insider trading charges. It is a warning to prosecutors. As a result, calls from companies whose stock are listed on the stock exchange or traded over the counter demand introducing exemption clause into current Taiwanese insider trading law. Considering that imposing severe liabilities might result in disadvantages against entrepreneurship, this thesis argues that the introduction of exemption clause is necessary. Therefore, this thesis will first deliberate the opinions in U.S., Japan and EU and then analyzes previous empirical cases in Taiwan. Finally this thesis will try to propose a solution about legislating exemption terms.