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当前,对于最为常见的利好型内幕交易,在我国行政执法和司法实践均采取“实际所得法”计算违法所得。该计算方法使内幕信息公开且被市场消化后的盈利仍被认定为违法所得,并且未剔除系统风险和非系统风险因素对个股价格的影响,将与违法行为没有直接因果关系的收益也认定为违法所得,既违反违法所得因果关系的基本法理,也有违行政处罚法的“过罚相当”原则与刑法的“罪刑相适应”原则。本文认为,在认定内幕交易违法所得时,应当将卖出股票盈利的认定限制在合理时间内,并将系统风险因素和非系统风险的其他因素导致的盈利予以剔除。
At present, for the most common good-type insider trading, both the administrative law enforcement and judicial practice in our country adopt the “actual income law” to calculate the illegal gains. The calculation method makes the insider information public and the market digested profit is still recognized as illegal income, and did not remove the systemic risk and non-systemic risk factors on the price of individual stocks, will have no direct causal relationship with the illegal proceeds is also recognized as The illegal income not only violates the basic law of the causality of illegal income but also violates the principle of “fair punishment” of the administrative punishment law and “criminal punishment” in criminal law. This article argues that in determining the illegal proceeds of insider trading, should be sold stock to the profit-making is limited to a reasonable period of time, and the system of risk factors and non-systematic risk of other factors led to the profit is removed.