再論內線交易持有說與利用說──從最高法院九十四年度台上字第一四三三號刑事判決（訊碟案）談起

The Insider Trading “Possession vs. Use” Debate Revisited─Comments on the Taiwan Supreme Court Criminal Judgment 94 Tai-Shang-1433

Prohibiting insider trading is usually justified on fairness or equity grounds. The Article 157-1 of the Securities Exchange Law of Taiwan followed the U.S. trend regulates prohibition of insider trading. Under current the Securities Exchange Law of Taiwan, how to demonstrate unlawful insider trading liability? Some people believes that mere possession of material, nonpublic information at the time of trading is sufficient for one to invite liability, while some others, especially judicial practice of Taiwan, holds that the imposition of liability presupposes a further showing that the insider actually used the material, nonpublic information. This issue has been known as the “possession vs. use” debate. This article aims to start with rethinking the Taiwan Supreme Court Criminal Judgment 94 Tai-Shang-1433, adding some comparative insights into the use standard and the possession standard in theory and practice of the U.S. To this end, this article argues that we should adopt the view of the use standard that is required to prove a causal connection between the possessed material, nonpublic information and the insider’s trading.