英国内幕交易案例与制度分析 [3]
论文作者:胡晓东论文属性:短文 essay登出时间:2008-06-13编辑:点击率:6855
论文字数:4235论文编号:org200806131316489583语种:中文 Chinese地区:中国价格:免费论文
关键词:英国证券股票内幕交易案例调查交易制度制度分析
绝行为发生后,是否将调查进行至完成,则依据国务大臣的决定和法庭的判决。如使调查终止当以国务大臣的决定或法庭的判决形成定论,如使调查继续进行至完成则形成上述(其一)所述的结局。调查不管以何种形式终止,调查人员的权力交付并消失,不再行使。
结语
英国在其交易活动的漫长的历程中,逐渐形成其对内幕交易的调控规则。这对于我们有不可或缺的借鉴,但还应更多的关注其依据固有的习惯阐释的法律理念。对同一问题的分析会有不同的视角和不同的切入点。此处将法律与案例相结合来分析,缘由在于英国是判例法国家,法官有权对法律做出解释。但其能否直接对我们其借鉴作用,还需慎思。无论如何,英国对内幕交易的规范模式和实际运作,是值得去细细研究的。
中国股市在复开的十多年来,以相当急速的跨越式膨胀发展。此间积生的问题必然会不少。如何解决是政府、学界都在努力求索的方向。但问题的积淀在弹指岁月间,其有效的解决不可妄然的想一蹴而就。必须将问题的诸因素多加细虑,才能寻求出有益的方式。如何维护市场的公信力,有效控制内幕交易是内幕交易立法及内幕交易活动不可避免的。寻求他山之石,也许会有所增益。这也是本文所期许的及立意所在。
参考文献:
[1]周正庆主编. 证券知识读本[M]. 北京:中国金融出版社,1998
[2]张明澍 编. 英国公司法经典案例[M]. 北京:法律出版社,1998
[3]卞耀武主编. 英国证券发行与交易法律[M]. 北京:法律出版社,1999
鉴于自己学识的浅显,对英文原文的理解会出现差错,会有许多偏颇,现附上英文原文,希望读者予以指正。
附英文原文:
Re an Inquiry under the Company Securities (Inside Dealing) Act 1985 [1988] 1 All ER 203 (House of Lords)
Warner, a financial journalist, had published two articles which appeared to be based on first-hand information about confidential decision within a government department. Inspectors, who had been appointed to investigate suspected inside dealing based on the same information, required Warner to reveal his sources so that they could trace the Crown servant responsible for the leaks ; but he refused, claiming that as a journalist it was necessary for him to treat his sources as confidential. The inspectors referred the matter to the court, asking that Warner be dealt with as if he had been in contempt of court (Financial Services Act 1986 s 178). The House of Lords ruled that Warner was bound too answer the inspectors’ question. [Subsequently he was fined $20,000 for contempt, having persisted in his refusal. The fine was paid by the newspaper for which he worked.]
LORD GRIFFITHS delivered an opinion in favour of the inspectors.
LORD OLIVER OF AYLMERTON: My Lords, I have had the advantage of reading in draft the speech delivered by my noble and learned friend, Lord Griffiths I entirely agree that, for the reasons which he has given s10 of the Contempt of Court Act 1981 is not directly applicable to a reference to the court under s178 of the Financial Services Act 1986.I also agree, however, that, even though not directly applicable, s10 is indicative of a general policy which should, on such a reference, be applied by way of analogy. Thus the essential question raised by this appeal is whether ,it being accepted that unless the information sought can be brought within one or other of the exceptions mentioned in s10 Mr. Warner has a reasonable excuse for declining to disclose it, it is information which is ‘necessary…for the prevention of …crime’.
Like my noble and learned friend, I have found myself unable to accept that the expression ‘prevention of …crime’ in s10 of the Act of 1981 is to be construed in the narrow sense for which Mr. Kentridge has contended. Clearly, in enacting s10, Parliament was enunciating a public policy for the protection of a journalist’s or author’s sources of information. Equally clearly, in providing for exceptional circumstances in which that protection should be overridden, it did so on the footing that those exceptions would have some practical application. The narrow construction contended for would, as it seems to me, largely deprive the exception of any useful content at all, for it is difficult to imagine circumstances in which a court or tribunal would be concerned to investigate a particular anticipated crime. The words must bear a wider meaning than that and must, I think, at least embrace the detection and prosecution
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