A Study of Whether to Introduce the Affirmative Defense Clause like Rule 10b5-1

• Main Authors: Li, Cheng Huan, 李承桓
• Other Authors: Liu, Len Yu
• Format: Others
• Language: zh-TW
• Online Access: http://ndltd.ncl.edu.tw/handle/32193905496124844730

碩士 === 國立政治大學 === 法律學研究所 === 102 === In Taiwan, corporate insiders face legal risk (both civil and criminal) when trading their firm’s securities because they possess material nonpublic information. Legislation of Taiwan select severe criminality policy to punish insider trading. However, there are some disputes in the interpretation and application of insider trading law, such as subjective element ("Possession standard "versus "Use standard " issue). Which arouse a question for insiders: How should we buy and sell stocks safely? Executive Yuan had proposed Revision Draft of Article 157-1 of securities exchange act in 2006, tending to add an affirmative defense clause, which had not been approved by Legislative Yuan. After then, the Revision Draft of affirmative defense clause had been proposed again in 2010, which also did not become legislative. From which, it is clear that there are huge disputes on the necessity and availability of affirmative defense clause. US Securities and Exchange Commission adopted knowing possession standard and established Rule 10b5-1 plans as a affirmative defense to allegations of insider trading. From the legislative language of the 2nd affirmative defense clause draft proposed in 2010, it is known that this affirmative defense clause draft was mainly based on Rule 10b5-1 released by US Securities and Exchange Commission. Thus, we should make a reasonable decision on whether to pass the revision draft and how to design the contents by observing development of US legislative practice and criticism of theories. Moreover, it should be a topic that how the affirmative defense clause matches with Criminal Law of Continental Legal System if we shall introduce the affirmative defense clause like Rule 10b5-1. Thus, based on two axis of whether to introduce the affirmative defense clause like Rule 10b5-1 and how to introduce the affirmative defense clause to avoid abusing, this article firstly introduces the development of insider trading law of USA, then introduces the origin and utilization of Rule 10b5-1 and opinions of scholars to solve above-mentioned problem, such as whether to introduce affirmative defense clause like Rule 10b5-1 and how to design the contents to avoid insiders to abuse the Rule, further suggesting to introduce some supporting measures such as “Disclosure of Trading Plan”, “Reducing compensation of executives” and “Blackout window restriction”, etc. Moreover, this article propose revision draft to supply the deficiency of the draft proposed by Executive Yuan in 2010, providing reference for future law revision and practical operation.