市場操縱犯罪的實質解構：法律與經濟分析

Deconstruction of the Essence of Criminal Market Manipulation: A Legal and Economic Analysis

健全市場操縱犯罪認定標準是當前資本市場監管中的重要任務，其理論前提與實踐基礎在於對市場操縱犯罪實質的準確把握。現有的市場操縱犯罪實質解釋在法律與經濟分析層面存在明顯缺陷。資本市場中市場操縱犯罪的實質是對證券、期貨合約以及其他金融衍生工具或者投資者資本配置決策進行非正當控制並從中謀取金融交易利益。市場操縱犯罪是金融商品操縱與市場資本操縱的獨立進行或者聯合展開。市場操縱犯罪實質的法經濟學解釋表明，操縱者通過價量操縱或決策操縱中的任何一種路徑對資本市場形成操縱，或者通過疊加地使用價量操縱與決策操縱強化與提升對資本市場的非正當控制力度。

It is one of the most important missions in recent years for the Chinese capital market regulation that the rules of the determination of market manipulation must be optimized. And the theory and practice foundation of this is the accurate interpretation of the essence of criminal market manipulation. However the current theoretic interpretations of market manipulation all had obvious flaws. The essence of the crime of market manipulation is the improper control of securities, futures contracts and other financial instruments or the decisions of capital allocation by financial market investors from which the profits are exploited. The crime of market manipulation is the independent action of financial commodity manipulation or market capital manipulation, or the combination of both. The legal and economic analysis proved that, actors can choose one manipulative type between price and volume manipulation and decision manipulation for the purpose of manipulating the capital market, as well as operate both of these manipulative forms to enhance the manipulative power towards financial market. The manipulators directly influence market price or trade volume of relevant financial commodity by transmitting misleading signals such as information, trading or market power, or indirectly exert the influence to capital market by controlling market participants in relevant financial commodity trading market, meanwhile they carry out their own corresponding financial trades or investments and make profits from the price differences between market price and real supply and demand relation or intrinsic value of the relevant financial commodity.