利用未公开信息交易罪的认定

利用未公开信息交易罪具备自己独立的构成特征,与内幕交易、泄露内幕信息及背信等犯罪相似,但并不完全相同。利用未公开信息交易罪与职务侵占罪和非法经营同类营业罪及操纵证券、期货市场罪也有根本区别,其实质是一种基金工作人员利用职务上的便利知悉即将用客户资金投资购买证券的商业秘密而从事的违法交易行为。     

The late trading and market-timing scandal of mutual funds

The first decade of the 21^st century witnessed several major financial scandals. One of the less studied of these by criminologists is the late trading and market-timing scandal that involved several major mutual funds, hedge funds, money managers and brokerage firms. Until this scandal was revealed in 2003, the mutual fund industry was considered a “clean” industry in which people with modest means could make long term investments with relatively low risk. The late trading/market-timing scandal changed this situation by harming these long-term investors.     

Trading when you cannot trade: Blackout periods in Italian firms

This paper is part of the general debate concerning corporate governance. It focuses on a mechanism of self-regulation geared at avoiding market abuses: the use of blackout periods during which insiders are temporarily prohibited from trading on the market. Data concerning corporate characteristics, blackout periods, and internal dealing, seem to indicate that companies with a large number of independent directors and a consistent ability to monitor are more likely to adopt blackout periods. However, the research shows that during 2003 insiders did not comply with Italy's Code of Best Practice; they did not totally refrain from trading during the assigned blackout periods. All three variables measuring frequency trading – the numbers of transactions carried out, of active insiders, and of shares traded – were statistically significant during the specified blackout periods. Therefore, this paper could have practical implications for policy makers. If they decide to adopt self-regulation to fight market abuses, they must be aware that a law is only as effective as its enforcement.     

Profiling the mobile customer – Is industry self-regulation adequate to protect consumer privacy when behavioural advertisers target mobile phones? – Part II

Mobile customers are increasingly being tracked and profiled by behavioural advertisers to enhance delivery of personalized advertising. This type of profiling relies on automated processes that mine databases containing personally-identifying or anonymous consumer data, and it raises a host of significant concerns about privacy and data protection. This second article in a two part series on “Profiling the Mobile Customer” explores how to best protect consumers’ privacy and personal data through available mechanisms that include industry self-regulation, privacy-enhancing technologies and legislative reform.¹ It discusses how well privacy and personal data concerns related to consumer profiling are addressed by two leading industry self-regulatory codes from the UK and the U.S. that aim to establish fair information practices for behavioural advertising by their member companies. It also discusses the current limitations of using technology to protect consumers from privacy abuses related to profiling. Concluding that industry self-regulation and available privacy-enhancing technologies will not be adequate to close important privacy gaps related to consumer profiling without legislative reform, it offers suggestions for EU and U.S. regulators about how to do this.²     

德国对冲基金监管制度研究

对冲基金起源于20世纪40年代末的美国。它是指通过非公开方式向少数机构投资者或富裕个人募集资金而设立,资产类别、投资技巧或杠杆使用不受或很少受到限制,基金经理也作为基金的一个主要投资者,具有以绝对回报为中心的业绩提成费用结构的投资资本组合。德国于2003年12月颁布《投资法》和《投资税法》对德国对冲基金业的发展及其监管做出了具体规定,首次从法律上明确允许对冲基金的发展,这对德国对冲基金市场的培育和繁荣具有里程碑的重大意义。     

内幕交易犯罪识别路径研究:从发行人许可的“内幕交易”谈起

近年来,部分美国学者主张允许发行人许可的内幕交易,在我国执法环境中,上述行为大概率将被认定为具有行政违法性,但是否当然地引发对当事人刑事责任的追究则有待商榷。本文对我国内幕交易犯罪的法益识别理论进行了反思,主张根据以信义义务为基础的反欺诈理论对内幕交易中值得刑法保护的法益加以甄别。司法机关应当对内幕交易案件进行独立判断,在发行人许可并对特定内幕信息知情人参与交易的行为及时予以披露的情形当中,即便在超额收益与行为人所具备信息优势地位间存在可被证明的因果关系,因不存在对发行人和股东的欺诈,仍应考虑非犯罪化处理的可能。借此希望为司法实践提供一种有效、稳定且克制的裁判路径,缓解当前由行政机关把握内幕交易"入罪"节奏的实践难题。     

A FIELD EXPERIMENT ON INSURANCE FRAUD IN AUTO BODY REPAIR*

This article focuses on a particular form of white-collar crime–insurance fraud in auto body repair. Through the use of an experimental design, whether repair estimates were related to insurance coverage was investigated for a statewide representative sample of auto body repair shops in Massachusetts. The auto body repair estimates were significantly higher with insurance coverage than without, regardless of type of car, extent of damage, sex of driver, and location of shop. The implication of the findings is that the automobile insurance industry is very susceptible to fraudulent or illegal practices that take unfair advantage of consumers and insurance companies.     

The Effectiveness of Insider Trading Regulation in Italy. Evidence from Stock-Price Run-Ups Around Announcements of Corporate Control Transactions

All developed countries and most emerging countries restrict insider trading in the belief that it may undermine investors' confidence and the integrity of financial markets.Such regulation, however, has proved to be relatively ineffective almost everywhere, as shown by the records on convictions in the last few decades and by the pervasiveness of insider trading signalled by stock-price run-ups around announcements of private information.Identifying illegal insider transactions may be difficult: the private information must be material, i.e. price-sensitive, and in some countries prosecutors have to prove the use of such information by corporate insiders. Moreover, the investigative powers of the enforcing Authority may be weak and the deterrence of criminal sanctions may be diminished by lengthy proceedings, especially when alternatives, such as administrative fines and civil actions, do not exist.To date, the Italian legal system has experienced great difficulty in detecting and punishing illegal insider trading. Since they were first enacted in 1991, the insider trading rules have led to two convictions and to a very low ratio of prosecutions to allegations of illegal trading. Moreover, leakage of private information appears to be widespread, given that news about firm-specific events seems to be incorporated in stock prices long before it is disclosed in public announcements.This paper examines the effectiveness of Italian insider trading legislation by focusing, among other things, on the stock-price run-up around announcements of corporate events. In particular, after a brief survey of earlier research on legal and illegal insider trading and on the most important weaknesses in the Italian legal framework, standard event-study methodology is used to analyse stock-price run-ups around 29 announcements of corporate control transactions in the period 1998–2000. Indicators of the leakage of non-public material information are then constructed, showing that securities prices follow similar patterns regardless of whether insider trading is likely to have occurred. This evidence raises questions as to the efficacy of Italian insider trading regulation and the paper concludes with some suggestions as to how it could be improved.     

Litigating Corporate Human Rights Information

This article analyzes trends in litigation brought against corporate actors regarding human rights information. Such information includes, but is not limited to, statements on packaging claiming that products are “ethically sourced” and investor-facing disclosures representing that an issuer's operations are environmentally friendly. It proceeds by outlining the sources of human rights-related disclosures as they arise under both legal and voluntary regimes. The article then addresses the case law. Recent years have seen an increase in lawsuits involving human rights information, or lack thereof, imparted by companies. Consumer protection or consumer fraud cases are being filed, alleging that companies have either provided false and misleading information or omitted information about corporate human rights impacts and mitigation efforts. Investors are filing similar claims. The article examines the trend and considers the role of this litigation both in holding companies to their word and in providing corporate accountability for the underlying human rights abuses that false or misleading human rights information may mask. It ultimately argues that, although success at trial in such cases remains elusive, litigation is a useful and potentially growing tool for holding companies to their word regarding human rights claims. It contextualizes this litigation, arguing that other means by which companies can be held to their word should be strengthened, including public enforcement and—potentially—new disclosure and due diligence laws.     

相互保险:我国医疗责任保险的发展取向--美国医疗责任相互保险公司的启示

责任保险是重要的风险转移工具(Alternative Risk Tansfer,ART),但商业性的保险公司为了追求商业利润往往不愿承保日益膨胀的医疗风险。美国非商业性的相互保险公司能为医疗风险提供弹性的保险计划,有力的风险管理,多功能的法律服务,而且低成本运作。我国应以美国医疗责任相互保险为模型,从社会系统工程的角度构建医疗损害赔偿制度。     

证券投资基金管理人与基金管理公司的法律辨析与现行立法检讨

证券投资基金管理人在基金法律关系中具有核心地位与绝对权利,是基金法制的中心与重点。依法成立的基金管理公司是基金管理人的法定形式;但是,基金管理公司须通过核准方可担任基金管理人且基金业务并非基金管理公司的唯一业务,两者不能简单等同。因此,在对基金管理公司进行法律规制与研究时,应充分考虑其所参加的各类法律关系的特征与需求。但现行基金管理公司的立法与研究并未区分上述两者之间的差异,而将基金管理公司等同于基金管理人加以规范,存在严重的局限性并导致一定程度的不公平,应当予以准确定位与有效调整。     

Underground banks in NYC,their main clientele and operators: The perspective of Chinese illegal immigrants

The financial link of the process of illegal immigration is an unexplored area in previous studies. This current work is the first qualitative study to deal with this concern. The study examines the nature of Chinese-operated informal fund transfer systems in the U.S. by investigating the main clientele, operators or owners, location, and operation style of Chinese underground banks. The primary source of data came from in-depth interviews with thirty illegal immigrants in New York City and Philadelphia. The findings show that the emergence of underground banks in the U.S. coincided with the largest tide waves of Abstract: The financial link of the process of illegal immigration is an unexplored area in previous studies. This current work is the first qualitative study to deal with this concern. The study examines the nature of Chinese-operated informal fund transfer systems in the U.S. by investigating the main clientele, operators or owners, location, and operation style of Chinese underground banks. The primary source of data came from in-depth interviews with thirty illegal immigrants in New York City and Philadelphia. The findings show that the emergence of underground banks in the U.S. coincided with the largest tide waves of Chinese illegal immigrants smuggled into the U.S. They served as a preferred means of fund transfers among Chinese illegals due to the unique service they offered, not necessarily because of the clients' illegal status, or coercive means by smuggling groups. The evidence generated from this research provides support for the illegal enterprise perspective. Chinese illegal immigrants smuggled into the U.S. They served as a preferred means of fund transfers among Chinese illegals due to the unique service they offered, not necessarily because of the clients' illegal status, or coercive means by smuggling groups. The evidence generated from this research provides support for the illegal enterprise perspective.     

浙江省江山市2005—2008年非法行医行政处罚案例分析

为对非法行医现象和行政处罚情况进行分析,从而为做好非法行医查处工作提出建议。我单位通过对江山市2005-2008年共86起非法行医行政处罚案例,从案由、违法主体类别、处罚情况等进行研究。研究结果显示,86例行政处罚中,以农村和城乡结合部为据点,以未取得《医疗机构执业许可证》擅自执业最多,其次是使用非卫生技术人员从事医疗卫生技术工作：主体类别以个体为主;罚款平均为每件次2994元,处罚额度过低。打击非法行医任务重、难度大,社会关注度高,需要加大执法力度,加强部门联动,加快社区卫生服务能力建设和完善合作医疗制度,强化培训,实行责任追究,建议修改相关法律法规,有效打击非法行医。     

私募股权投资基金退出机制法律完善研究——以防范系统性金融风险为视角

金融科技的高速发展、行业竞争加剧以及私募特性下的监管缺失是私募股权投资基金集聚金融风险的主要原因。我国的私募股权投资基金退出机制原有的体系、机制经过多次改进,效率、能级的提升已基本走到尽头。为了提升我国私募股权投资基金退出机制的国际竞争力,防止类似集资诈骗犯罪的涌现,防范可能出现的系统性金融风险,维护社会稳定、国家稳定,维护中国特色社会主义发展建设,需要对我国证券市场进行全面系统的金融改革。应制定《私募股权投资基金投资法》规范退出机制、完善证券市场各板块的法律定位与转板责任追究法律机制,完善对集资诈骗等不法金融行为的法律规制。     

Concept for Comprehensive Organizational and Managerial Reform of the Law Enforcement Agencies of the RF

The Concept for Comprehensive Organizational and Managerial Reform of the Law Enforcement Agencies of the Russian Federation, prepared by the Institute for the Rule of Law at the European University, St. Petersburg, proposes creating interdepartmental systems of mutual oversight, opening up law enforcement agencies to public oversight, and eliminating the incentives and conditions that induce law enforcement personnel to commit illegal actions and apply the law selectively.     

The enterprise “model” of organized crime: Assessing theoretical propositions

In recent years, the study of organized crime has been oriented around the enterprise “model.” This model is really an approach to studying organized crime, founded on the notion that legal and illegal businesses are quite similar. This notion provides the method used by enterprise theorists: theories established for studying formal legal organizations are applied to the study of businesses that provide illegal goods and services. The most noteworthy research based on the enterprise approach is that of economist Peter Reuter. Reuter used principles of industrial organization and marketplace dynamics to predict that illegal enterprises will be relatively small and shortlived, and that illegal markets will be characterized by competition, not by collusion. Here I seek to assess the degree to which Reuter's propositions were confirmed or disconfirmed by observations of the numbers gambling industry in New York City in the 1960s. Most of Reuter's propositions were not supported by the data used in this study.     

Insider trading and the public enforcement of private prohibitions: some complications in enforcing simple rules for a complex world

Accepting the argument made by Manne, Epstein and others that firms wishing to allow their employees to insider trade should be permitted to do so, this article shows that there is still a crucial role for government in regulating insider trading. In particular, allowing employees to profit by insider trading is a form of employee compensation that, in contradistinction from conventional forms of equity compensation, results in unknowable and effectively unlimited costs to the company. Since providing employee compensation in this form causes the company to lose control of its compensation expense, even if insider trading were legal, virtually every company would rely on conventional forms of employee compensation and prohibit its employees from insider trading. But, pace Manne, Epstein and others, companies lack the means to detect insider trading by their employees, and even when they do catch employees insider trading, companies can impose only mild contractual sanctions, generally not exceeding disgorgement of profits and dismissal. As a result, although an efficient agreement between a company and its employee would prohibit the employee from insider trading, this prohibition cannot be effectively enforced by the company. Government, with its usual law enforcement powers, is better able to detect insider trading and can impose more severe sanctions on violators, including criminal penalties. Government should thus enforce a ban on insider trading in those instances, which will be virtually all instances, in which a company prohibits its employees from insider trading. The efficient solution is thus a hybrid system of private prohibition and public enforcement. Such a system is not unusual but the norm. Employers prohibit employees from embezzling their money and stealing their property, and employees are subject to contractual sanctions and dismissal for violating these prohibitions, but we still need statutes against theft to generate an optimal level of deterrence. This is all the more true when the employee misappropriates information, which is much harder to detect than a theft of money or property.

     

Moving from secrecy to transparency in the offensive cyber capabilities sector: The case of dual-use technologies exports

Transparency is central to the prevention of human rights abuses. Over the past few decades, a belief in transparency has permeated multiple industries, reflected in an explosion of legislation intended to further this principle. Yet, despite this emphatic recognition of the importance of transparency, the activities of government and private sector actors involved in the development, sale, and export of Offensive Cyber Capabilities (OCC) remain cloaked in secrecy regardless of the sector’s role in facilitating human rights abuses. In this article, we tackle this broader challenge of secrecy via a case study on the export of dual-use technologies. We theorize why secrecy has been so prevalent in the OCC sector. We consider the role of different forms of secrecy—such as commercial secrecy and opportunistic secrecy by governments—in facilitating this situation. We argue that injecting greater transparency into the OCC sector is critical to deterring human rights abuses through accountability and oversight, can help counter the proliferation of offensive cyber technology proliferation, and can ensure better overall governance in regimes governing the export of dual-use technologies. Mandating transparency by governments and exporting companies in the OCC sector can pave the way for policy changes to better regulate this industry and finds support in international human rights principles related to transparency. In closing, we examine how transparency might be incorporated into export frameworks addressing dual-use technologies.     

台湾地区证券交易法不法交易之法律实务运作——以台湾实际发生案件为例

我国台湾地区证券交易市场存在不少的不法交易，对于整体金融市场的健全以及投资大众的财产均构成威胁。在台湾地区成立的投资人保护中心主要以受理投资人保护为主，根据所接受的案件而分类，较常见的证券不法案件分为四种型态，第一类为财报不实型态，第二类为内线交易，第三类为操纵股价，第四类则为公开说明书不英[1]。