Beyond Uncertainty: Lower Courts’ Defiance in Insider Trading Cases in Taiwan

超越法律解釋的不確定性：臺灣內線交易案件中下級審法院的堅持

臺灣對於內線交易的明文規範始於一九八八年，但對於內線交易的追訴直到一九九○年代末期才逐漸增加。近年之內線交易案件雖多，定罪率則相當低。因此，內線交易規範常被批評是存在著過高的不確定性。
相對於傳統上對於內線交易規範不確定性的探討，本文則嘗試從下級審法院的堅持，提供另一種觀點。本文認為，在下級審法院逐漸設立專業法庭、指定專業法官的情形下，司法階層下法律見解上行下效的體制受到極大的挑戰。要緩解此一問題，必須強化最高法院與下級審法院的溝通，而學術研究的重視與引用，應在溝通過程中扮演重要的角色。

 

Taiwan promulgated its insider trading law in 1988. Prosecutions against insider traders were rare until the late 1990s. As enforcement actions increase, high-profile cases often shock the public and unsettle the business community about how to implement trading without incurring any legal risks. On the other hand, only a small number of prosecuted defendants are finally convicted. Judgments by the second-instance high courts are often reversed and remanded by the Supreme Court. That the conviction rate and the non-reversal rate are low means that prosecutors and judges from different levels of the judicial hierarchy are often unable to agree on the alleged violations and the interpretation of the law. Hence, legal uncertainty is unreasonably high.
In this paper, conventional wisdom is challenged regarding the causes of difficulties enforcing insider trading laws in Taiwan, arguing that evaluating the defiance of the lower courts can elucidate these enforcement problems. It is suggested that lower courts’ obedience to precedents be partly premised on the condition that higher courts are more skillful interpreters of the law and can offer superior solutions to legal questions. From this angle, hierarchical legitimacy has become an increasing challenge since specialized panels were established in lower courts, but not in the Supreme Court. This paper does not favor a specialist court system. Instead, it suggests that, to improve communication between the Supreme Court and the lower courts, academics can play a much more important role than they do now.