内幕交易责任承担的困境研究——以行刑衔接为视角

Research on the Dilemma of Liability for Insider Trading—From the Perspective of the Connection between Administrative and Criminal Law

摘要: 伴随着我国证券市场发展，内幕交易作为典型证券欺诈行为层出不穷，虽然被证券法、刑法分别纳入行政与刑事规制范畴，但在行刑衔接中存在显著内幕交易责任承担的困境。基于对困境分析，是因为三大原因：一是法律责任体系逻辑含混，证券法(侧重秩序维护)与刑法(侧重威慑)在责任定位、认定逻辑上冲突；二是行政机关与司法机关对内幕交易行为“质”(行为性质)与“量”(危害程度)的认识存在显著差异；三是“情节严重”标准模糊。对此，需通过重构法律责任规范体系、明确“由行到刑”移送标准，进而优化行刑衔接，从而更好地保障证券市场公平秩序。

Abstract: Accompanied by the development of our country’s securities market, insider trading has been a typical form of securities fraud that has emerged in abundance. Although it has been incorporated into the categories of administrative and criminal regulation by the Securities Law and the Criminal Law respectively, there are significant dilemmas in the connection between administrative and criminal liability for insider trading. The analysis of these dilemmas reveals three main reasons: first, the legal responsibility system is logically ambiguous, with conflicts in the positioning and identification logic of responsibility between the Securities Law (which focuses on maintaining order) and the Criminal Law (which emphasizes deterrence); second, there are significant differences in the understanding of the “quality” (nature of behavior) and “quantity” (degree of harm) of insider trading behavior between administrative agencies and judicial bodies; third, the standard of “serious circumstances” is vague. To address this, it is necessary to reconstruct the normative system of legal responsibility, clarify the standards for transferring cases from administrative to criminal proceedings, and optimize the connection between administrative and criminal law, thereby better safeguarding the fair order of the securities market.