防制內線交易的危機：隱匿財報造假，內線交易無罪？

The Crisis of Insider Trading Prevention: The Concealment of Fraudulent Financial Reports and the Immunity from Insider Trading Liabilities

上市公司負責人編造假帳，因顧慮消息曝光後股價重跌遭受損失，因而在消息未公開之前，搶先賣出股票，是否構成內線交易？
有判決認為，證交法第157條之1的「重大影響股價之消息」，僅限於「未公開，但會公開的消息」。編造假帳雖為重大消息，屬於「不會公開的消息」，不在第157條之1的規範範圍之內。
另有法院認為「重大消息」並未排除所謂「不會公開的消息」。公司負責人在重大消息未公開之前買賣股票，應成立內線交易。
本文認為，內線交易的重大消息，不應將所謂「不會公開」的消息排除在規範範圍之外，否則將使內線交易的防制出現重大的疏漏。

Consider a corporate director who is engaged in internal accounting fraud, sells his stocks before the fraud is detected and disclosed to the public, thereby avoiding hefty losses. Is the director’s sale of stocks an insider trading? A court decision holds that the director is guilty of accounting fraud, but commits no insider trading. The court indicates that the information of accounting scandal is material, capable of adversely affecting the stock price when it is revealed, and that the director did trade on that information. However, the decision points out that the material information regulated by Art. 157-1 of the Securities Exchange Law (“the Law”) does not include the information that will not be disclosed to the investing public. Since the director is not obliged to reveal his own criminal activities under his rights against self-incrimination and freedom of speech, the information of accounting scandal will not be disclosed, and therefore not the material information covered by Art. 157-1 of the Law. According to this view, accounting fraud (or other criminal offense that would affect stock price) will provide corporate insiders with immunity from insider trading liabilities. Not all court decisions take the same position though. Several other decisions do not exclude the material information that “will not be disclosed” from the domain of Art. 157-1. This article discusses relevant decisions, analyzes different views, and concludes that corporate accounting fraud or other criminal offenses should not be a ground for insider trading immunity. To hold otherwise, salient loopholes will be created for the prevention of insider trading.