內幕交易侵權責任因果關係的司法觀察

Judicial Observation of the Causation in Tort Liability of Insider Trading

因果關係是當前內幕交易侵權司法實踐面臨的突出難題，但相關理論均建立在對內幕交易錯誤定性的基礎上，因而無法提供有效破解方案。內幕交易本質上是內幕人利用通過不公平機會獲得的內幕資訊，對其他不知情投資者實施的不公平交易行為，而非欺詐。這些不知情投資者均是出於對證券市場公平性和誠信性的信賴而參與其中的，如果其知道反向交易者中存在內幕人，必然不會作出導致自己利益受損的交易決策。因此，自內幕交易開始至信息公開期間內與內幕人從事反向交易的投資者均面臨遭受內幕交易侵害的現實危險，故應推定其受損交易皆與內幕交易存在因果關係。同時，應將內幕人的賠償總額限定在違法所得範圍內，以達致補償實際受害者損失與避免課以違法者過度責任的雙重目標的平衡。

Causation is an outstanding problem currently faced by the judicial practice in the infringement of insider trading; however, related theory is commonly based on the falseness of insider trading, which makes it hard to provide effective solution. Rather than fraud, insider trading is essentially unfair trading behavior with uninformed investor by insider using inside information acquired from unfair opportunities. These uninformed investors participate in the securities market based on the belief of the fairness and integrity of the market； had they knew the existence of insider as their counterparty for trading, they certainly would not make trading decision which would lead to damage of their own interest. Therefore, during the period between the start of insider trading and the information disclosure, investors always face the risk of being the counterparty of insider trading； therefore, it can be presumed that their loss is caused by insider trading. Meanwhile, the total amount of indemnity to the victim should be limited within the scope of illegal income of offender, in order to balance between the compensation for the actual loss to the victim and the excessive liability of the offender.