結論 - 美國內線交易執法實證研究：以SEC 2009至2012年之個案為核心

長久以來，各國一直積極找尋能有效打擊證券詐欺犯罪的方法，目的在於建立一個安全有秩序之證券市場，使投資人放心大膽地投資。因此各國證券主管機關無不希望藉由制定良好之證券法規，促使公司資訊透明化，市場參與者亦能各盡其責，進而塑造值得信賴之投資環境，促進整體經濟的發展。而除了具有良好的證券法規範外，

能有效的執法亦為維繫證券市場完整性不可或缺之因素之一。畢竟，即使有了最好的法規，若無有效的執法亦是枉然。

隨著時代的邁進，證券市場的變化亦日趨複雜，交易模式日新月異。證券主管機關如何與時俱進，建立一套靈活有彈性且同時有效率之執法機制，以因應各種挑戰，

是非常值得各國去思考的。

本研究透過介紹美國對於證券法規之執法，特別是其證券主管機關—聯邦證券管理委員會—之執法架構，一步步勾勒出美國的執法現況，而其中重要的特色之一在於其採行多元的執法架構。在政府端，除了聯邦證管會主導之民事與行政程序外，對於較為嚴重之證券犯罪亦可移送至司法部進行刑事追訴，以對被告產生警惕作用。而私人亦可利用團體訴訟之方式向被告提起損害賠償訴訟。如此多元之執法手段，其優點在於主管機關可因案制宜，就案件本身性質差異性、其所涉及行為之嚴重性進行評估後，選擇適當之方式處理，避免大大小小案子均採行相同程序所可能產生之不效率。

惟，採行多元手段之疑慮在於，若主管機關對於不同程序發動之標準不一致，容易造成法的不安定性，使行為人無法預見其行為可能產生之後果。因此，欲使用多元執法手段之國家，必須保持證券主管機關與證券市場參與者溝通管道之暢通，藉由互相表達各自的立場，逐漸形成執法上的共識。

79

美國另外一項特色在於主導證券執法之聯邦證管會具有高度的專業性，並同時具有實質權力進行執法。透過獨立機關的編制，聯邦證管會享有一定程度之行政權、準立法權與準司法權可供行使，轄下並設有各個部門與辦公室分工協調，對於證券市場不同領域進行監管。此外，對於案件之調查聯邦證管會亦建立一套嚴謹之調查程序，

不僅對於當事人權利提供適度之保障，亦同時考量到公共利益之維護。誠如本研究先前所述，聯邦證管會之執法無可避免地會涉及利益衝突時的衡量，因此若能確保執法之程序公平性，則當事人理應尊重最終的執法結果。

最後，本研究藉由研讀聯邦證管會對於內線交易執法案件之內容，彙整相關數據，

描繪出 2009 年至 2012 年執法的圖像。此舉不僅得以了解內線交易案件所涉及之人

（被告）、事（消息種類）、時（作業時間）、地（利用何種訴訟程序）、物（裁罰內容），種種面向，亦可由案件之結果歸納出其執法的特色，進而分析其妥適性。透過本研究之實證數據可發現，大量使用和解與對於民事程序的依賴是聯邦證管會執法的一大特色。而大量使用和解重要的爭議點在於如何在「使被告對其行為負擔全責」與「快速且有效率地終結案件」兩者之間達到一個適度的平衡。因此，欲探究和解是否為處理證券詐欺案件（特別是內線交易案件）理想的方式，其答案並非單純的是與否，重點應在於除了具有完善的證券法規外，背後之執法層面上有無建立制度性的配套，以因應可能產生的種種問題與挑戰。

80 參考文獻

中文書籍

曾宛如，《證券交易法原理》，6 版，元照出版，台北（2012）。

劉連煜，《新證券交易法實例研習》，10 版，元照出版，台北（2012）。

賴英照，《股市遊戲規則：最新證券交易法解析》，2 版，自刊，台北（2011）。

中文期刊

余雪明、余慕德，〈證券交易法近年修法之回顧與前瞻〉，《月旦法學雜誌》，200 期，

頁 148-180。

賴英照，〈美國聯邦證券管理委員會之研究〉，《中興法學》，19 期，頁 283-363。

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83

附錄一 2009 至 2012 年 SEC 內線交易執法案件總覽

Fiscal Year 2009

Civil Case

LR20774 SEC v. Francis Elias Axiaq, et al.

4 Trading on the non-public M&A information tips received from one of the defendants S $1,357,252/

$382,398

LR20784 SEC v. Brian D. Ladin, et al.

1 Ladin, on the basis of the material, non-public PIPE information, presented an investment in Radyne to Bonanza, resulting in Bonanza establishing a 100,000 share short position in Radyne stock

$647,427/

$317,000

LR20789 SEC v. Brett C. Maas 1 Trading in the stock of Michigan-based Manatron, Inc., prior to the announcement of its pending acquisition by Chicago-based Thoma Cressey Bravo

$88,615/

$29,538

LR20805A SEC v. Jonathan Wilson 1 Misappropriated material, non-public information from McKesson about its planned acquisition of D&K through a tender offer and purchased shares of D&K

117,046/

84

LR20810 SEC v. Mark Cuban 1 Trade on the basis of material, non-public information concerning an impending PIPE (private investment in public equity) offering by the company

L (Jury found not

9 Matthew Devlin traded on and tipped at least four of his clients and friends with inside information about 13 impending corporate transactions

LR20863A SEC v. Aaron S. Cooksey 1 Misappropriated the information when he purchased SigmaTel stock before Freescale publicly announced the deal

1 Tipped another friend, also an industry professional, with material nonpublic information about the ABS acquisition he learned as a result of his employment

LR20884 SEC v. Nicos Achilleas Stephanou, et al.

7 Two mergers and acquisitions professionals tipped five individuals with material nonpublic information about three impending corporate acquisitions

S/L

P/PD

LR20953A SEC v. Michael Biello 1 Unlawfully traded in ACR Group's securities when he tipped his brother in advance of the July 5, 2007 public announcement that Watsco, Inc., a New York Stock Exchange issuer, would acquire ACR Group's outstanding common stock in a tender offer

1 Misappropriated material, non-public information from McKesson about its planned acquisition of D&K through a tender offer, and placed orders to sell all of his shares of D&K stock on the day of McKesson's announcement

$272,239/

$120,170 P

LR21015 SEC v. Matthew J.

Browne

1 Browne breached duties of trust and confidence owed to his client and the law firm by secretly trading on the non-public information

$165,052/

$81,773

85

LR21020 SEC v. Maher F. Kara, et

al.

6 Maher Kara repeatedly tipped his brother (Michael Kara)about upcoming merger deals in an insider trading scheme that involved friends and family throughout Northern California and the Midwest

LR21020 SEC v. Nasser Mardini 1 Encourages others to trade on Michael Kara's tip and receive personal benefits S - P

LR21023 SEC v. Jon-Paul Rorech, et al.

2 Defendants engaged in insider trading in the credit default swaps of VNU N.V., an

international holding company that owns Nielsen Media and other media businesses L

LR21069 SEC v. Tajyar, et al. 4 One of the defendants repeatedly misappropriating confidential information about public announcement from firm clients and tipping his current employer and former colleague, who traded on that information and tipped others.

S - P/D

LR21072 SEC v. Robert L. Hollier, et al.

2 Involves insider trading in the securities of Warrior Energy Services Corporation ("Warrior Energy") by Dupuis, who received tips directly or indirectly from Hollier, a member of Warrior Energy's board of directors

S MacDonald, et al.

3 Defendants engaged in insider tipping and trading in the securities of several companies ahead of public announcements of business combinations. One of the business combinations involved a tender offer.

6 Six individuals illegally trade in the securities of Neff Corporation before an April 7, 2005, announcement of its acquisition

S/L

$814,980/

$78,394

86

LR21133 SEC v. Anthony Perez and

et al.

2 Defendants either tipped or purchased securities of Safeco Corp. in advance of the April 23, 2008 announcement that it was being acquired by Liberty Mutual Insurance Company

$330,223/

$25,000

LR21133 SEC v. Math J. Hipp, Jr. 1 Hipp misappropriated material, non-public information about a potential sale of Safeco from his wife who was the executive assistant to Safeco's Executive Vice President of Insurance Operations

2 Defendants either tipped or purchased securities of Safeco Corp. in advance of the April

23, 2008 announcement that it was being acquired by Liberty Mutual S

$2,536,235/

$3,690,000 P

LR21140 SEC v. Andres Leyva 1 Trading on the basis of confidential information about Qualcomm's new licensing agreement with Nokia and the settlement of all litigation between the companies

S Mohammed Sharif Al Sayed Al Hashemi

1 Unlawfully trading in advance of the merger announcement

$875,000/

$406,620 P

LR21183 SEC v. Nancy Jewell, et al.

3 Defendants each misappropriated the inside information(acquisition) from the Director by purchasing First Indiana common stock on the basis of the information

1 Misappropriated material non-public information from his sister, whose husband was an executive officer at Covansys Corporation

2 Soisson and Walker, who are married, engaged in unlawful insider trading in the securities of i2 Technologies, Inc.

$330,422/

$163,224

LR21209 SEC v. Allen W. Moss 1 Engaged in unlawful trading in the securities of Callon Petroleum Company (Callon Petroleum) on the basis of material nonpublic information obtained from his girlfriend

$152,891/

$75,400

87

LR21221/

LR21360

SEC v. Reza Saleh, et al. 1 Made increasingly large purchases of Perot Systems call options contracts based on

material, non-public information that he learned in the course of his employment S - P/PD

None SEC v. Melissa A. Mahler 1 Traded on material, nonpublic information in breach of her duty of loyalty and confidentiality

1 Repeatedly engaged in insider trading by purchasing and/or selling Amkor securities prior to five Amkor public announcements relating to earnings results or company business transactions

34-59367 In the Matter of Hafiz Naseem

1 Misappropriated material, non-public information concerning pending merger activity and repeatedly tipped a Pakistani banker, who traded on that information for his and Naseem's benefit

34-59568 In the Matter of Matthew E. Kopsky

1 Kopsky purchased ESSI securities for himself and his clients based on material, nonpublic information received from Davis

S - PD

34-59960 In the Matter of Matthew J. Browne, Attorney

1 Secretly trading on the non-public information, Browne breached duties of trust and confidence owed to his client and the law firm at which he was then employed

S - PD

88

3-13481 In the Matter of David G.

Ghysels, et al.

3 Respondents participated in a scheme to provide access to "squawk boxes" to Watley to broadcast confidential information so its day traders could improperly trade ahead of the broker-dealers' institutional orders

34-60119 In the Matter of Mitchel S.

Guttenberg

1 Defendant misappropriated material, nonpublic information from UBS and unlawfully passed that information to David Tavdy and another coconspirator, and David Tavdy and this other coconspirator illegally traded using that information and then shared the illegal profits with Guttenberg

Fiscal Year 2010

Civil Case

Xie began acquiring shares of DOCX common stock prior to the December 7th meeting, while preparing due diligence materials (concerning a plan to further extend the pre-existing partnership between EMC and DOCX) for EMC

$12,9400/

$62,050

LR-21249

SEC v. Benjamin P. Jones, et al.

Benjamin Jones, a former vice president of sales at Jamdat, was apprised of the status of Jamdat's merger discussions, and that he tipped several friends and his brother, William Jones, III ("Bill Jones"), who in turn bought Jamdat stock

$305,200/

$226,100

P/PD

89

LR21249/

LR22284

SEC v. Alissa Joelle Kueng

Based on the information received from another trader, Kueng recommended purchasing the stock to a trader in her firm, who bought Jamdat stock prior to the announcement, as well as to several institutional clients, two of whom bought Jamdat stock prior to the merger announcement Management, LP, et al.

Raj Rajaratnam and his New York-based hedge fund advisory firm Galleon Management LP engaged in a massive insider trading scheme that generated more than $25 million in illicit gains. The complaint alleged that Rajaratnam tapped into his network of friends and close business associates to obtain insider tips and confidential information about corporate earnings or takeover activity at several companies, including Google, Hilton and Sun Microsystems. He then used the non-public information to illegally trade on behalf of Galleon.

S/L(dismiss claims or obtain final judgment)

$48,244,920/

$25,599,210

P/D/PD

LR21260 SEC v. Don N. Spaugy 1

In the course of his employment at SemGroup, Spaugy learned that SemGroup was in a liquidity crisis, after learning this material nonpublic information, Spaugy liquidated his shares in SemGroup

$138,226/

$67,424

90

LR21263

SEC v. Stanko J.

Grmovsek

Used inside information funneled to him by his former law school classmate Gil I.

Cornblum to trade on U.S. exchanges through foreign accounts

$1,500,000/

LR21267 SEC v. J. Bennett Grocock 1

J. Bennett Grocock, the former outside counsel for CyberKey Solutions, Inc., made at least $170,000 by selling shares of the company's stock while in possession of material, nonpublic information about the company

Chen Tang learned non-public information as the CFO of a private equity fund and from illegal tips by his brother-in-law, who was the CFO of a venture capital fund. Tang and his trading partners, which included his brother and four friends, traded on the inside information.

Cutillo, through his friend and fellow attorney Jason Goldfarb, tipped inside information concerning these acquisitions to Zvi Goffer, a proprietary trader at the broker-dealer Schottenfeld Group, LLC ("Schottenfeld"). The complaint further alleges that Zvi traded on this information for Schottenfeld, and had numerous downstream tippees who also traded on the information, including other professional traders and portfolio managers at two hedge fund advisers

Illegal trading in Shuffle Master stock and options prior to an announcement of disappointing financial results by Shuffle Master

Misappropriated from his law firm material, nonpublic information concerning at least two corporate acquisitions

Vinayak S. Gowrish and Adnan S. Zaman stole confidential information from their firms in connection with five deals and tipped two friends - Pascal S. Vaghar and Sameer N.

S/L

$223,456/

$100,000

P/PD

91

LR22039 Khoury - in exchange for kickbacks. Vaghar and Khoury both then traded stock and options on the basis of the nonpublic information.

LR21347

SEC v. Nicolas Patrick Benoit Condroyer, et al.

Condroyer and Roger, while in possession of material, nonpublic information regarding

在文檔中美國內線交易執法實證研究：以SEC 2009至2012年之個案為核心 (頁 88-132)