探討內線交易罪保護之法益與構成要件明確化 －以歐盟、美國、中國大陸為比較

Abstract

內線交易的相關行為錯綜複雜、金額龐大且犯罪嫌疑人經常是社會上的政商名流，背後有許多專業人士對其「指導」，造成訴追機關的偵查不易，且由於我國證交法第157條之1的條文也並不十分明確，使得我國內線交易案件定罪率一直不高，在媒體一再報導這些白領階層無罪釋放後，常使得民眾質疑司法公正與威信，說內線交易罪是刑法眾多罪名當中爭議與受矚目程度最多者一點也不為過。也經常有論者認為，國家機關不應耗費龐大資源去追訴不易定罪的內線交易案件，不如以行政或民事責任規範即可。 其實內線交易是否應除罪化，正本清源應以法益的思考為出發點，若侵害了刑法值得保護的法益，則應處以刑罰，而非以不公平或其他抽象、模糊的概念作為刑罰的依據。反之，若無刑法上保護之法益，則無刑罰之必要。可惜的是，我國的學說與實務常陷入美國反詐欺概念的泥沼，一直在市場論以及關係論中爭議不休，不但造成普通法的抽象概念如何對應到我國具體法律條文的困難，也未見討論美國反詐欺理論的法益為何。 若承認有刑罰之必要後，則須檢驗罪刑法定的子原則－法明確性原則，在條文的構成要件上，應認為內線交易罪既然是刑法的範疇，則應預先將條文訂立精確，法院不應在審判時才引用美國的抽象法理論為事後之判斷，使得人民對於行為是否日後會受到處罰無預見可能性。 職故，筆者在論文中在剖析美國犯詐欺理論之缺點後再參考歐盟與大陸地區的學說與立法後，期能對於探尋我國內線交易罪之法益有所裨益，並且建構我國明確化的條文，使得人民在行為之前即有預見性，且法院審判時也能更為精確。

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.