連續交易炒作之過去、現在與未來──美國法之啟示

Rules for Stock Speculation by a Series of Transactions: Past, Present and Future - Enlightenment from the U.S. Legal System

連續買賣股票者，若僅為求投資而買進，或為處分持股而賣出，並無誘使他人買賣股票之目的時，即便明知其行為將影響市場價格，是否仍具可罰性？值得研究。我國證交法第155條第1項第4款係參考美國1934年證交法第9條第（a）項第（2）款之規定而來，然二者規範要件卻差異甚大，而美國法實務上，亦常發生如何證明「以誘使他人買賣證券為目的」之棘手問題，甚至廣泛仰賴同法第10條第（b）項及規則10b-5等規定，以追究使用操縱或詐欺手段買賣證券之行為。我國為平衡行為人之投資自由及一般投資人不被詐害之權益保護，於2015年修正證交法第155條第1項第4款，增定「而有影響市場價格或市場秩序之虞」之要件，使規範對象轉為德國法所稱之「抽象具體危險犯」，然自我國近年司法實務觀察，修法實益似乎不大。是故，本文將比較分析美國法與我國法之立法沿革及實務發展，探討連續買賣炒股之主觀構成要件是否應予調整，期能提供未來修法之思考方向，以有效制裁具有非難性、可罰性之連續交易炒作行為。

A person will probably conduct a series of transactions merely trying to acquire stock for investment or desiring to dispose of his holdings. Meanwhile, if his action is not for the purpose of inducing the purchase or sale of such security by others, does his knowledge that in doing so he will affect the market price make his action unlawful? The related law in Taiwan is § 155(I)(4) of the Securities and Exchange Act that was transplanted from § 9(a)(2) of the U.S. Securities Exchange Act of 1934. However, both rules are quite different from each other in the required elements of manipulation. Additionally, due to the difficulty in proving inducement, the U.S. Securities and Exchange Commission (SEC) and courts have not made much use of § 9(a)(2), opting instead to rely on § 10(b) of the 1934 Act and Rule 10b-5 to prosecute manipulation. In order to balance the trader’s freedom of investment and the protection of other ordinary investors, the 2015 amendment to § 155(I)(4) of Taiwan’s Securities and Exchange Act added a new requirement which states that “when there is a likelihood that market prices or market order will be affected.” Therefore, in addition to meeting the existing requirements, the actor will be guilty only if he commits such an “offence of abstract-concrete endangerment (abstrakt-konkrete Gefährdungsdelikte)” as described in the German law. However, according to the recent court opinions, such a revision seems to make no significant difference in the final judgments of the most cases in Taiwan. This article compares and analyzes the legislative history and practical development of both the U.S. and Taiwan laws and discusses whether the mensrea of conducting a criminal series of transactions shall be redefined. Finally, this article also tries to provide policy suggestions for future revision of the law so as to facilitate more effective prosecution of punishable stock speculation in Taiwan.