国务院办公厅转发证监会等部门关于依法打击和防控资本市场内幕交易意见的通知
国务院办公厅
国务院办公厅转发证监会等部门关于依法打击和防控资本市场内幕交易意见的通知
国办发〔2010〕55号
各省、自治区、直辖市人民政府，国务院各部委、各直属机构：
证监会、公安部、监察部、国资委、预防腐败局《关于依法打击和防控资本市场内幕交易的意见》已经国务院同意，现转发给你们，请认真贯彻执行。
国务院办公厅
二○一○年十一月十六日
关于依法打击和防控资本市场内幕交易的意见
证监会 公安部 监察部 国资委 预防腐败局
为维护市场秩序，保护投资者合法权益，促进我国资本市场稳定健康发展，现就依法打击和防控资本市场内幕交易提出以下意见：
一、统一思想，提高认识
内幕交易，是指上市公司高管人员、控股股东、实际控制人和行政审批部门等方面的知情人员，利用工作之便，在公司并购、业绩增长等重大信息公布之前，泄露信息或者利用内幕信息买卖证券谋取私利的行为。这种行为严重违反了法律法规，损害投资者和上市公司合法权益。证券法第五条规定，“禁止欺诈、内幕交易和操纵证券市场的行为”，第七十三条规定，“禁止证券交易内幕信息的知情人和非法获取内幕信息的人利用内幕信息从事证券交易活动”。刑法第一百八十条、第一百八十二条对内幕交易、利用信息优势操纵证券交易价格等行为的量刑和处罚作出了明确规定。
当前，打击和防控资本市场内幕交易面临的形势较为严峻。一些案件参与主体复杂，交易方式多样，操作手段隐蔽，查处工作难度很大。随着股指期货的推出，内幕交易更具隐蔽性、复杂性。各地区、各相关部门要充分认识内幕交易的危害性，统一思想，高度重视，根据刑法和证券法等法律法规规定，按照齐抓共管、打防结合、综合防治的原则，采取针对性措施，切实做好有关工作。
打击和防控资本市场内幕交易工作涉及面广，社会关注度高，需要动员各方面力量，促进全社会参与。要通过法制宣传、教育培训等多种形式，普及刑法、证券法等法律知识，帮助相关人员和社会公众提高对内幕交易危害性的认识，增强遵纪守法意识。要坚持正确的舆论导向，增强舆论引导的针对性和实效性，充分发挥社会舆论监督作用，形成依法打击和防控资本市场内幕交易的社会氛围。
二、完善制度，有效防控
内幕信息，是指上市公司经营、财务、分配、投融资、并购重组、重要人事变动等对证券价格有重大影响但尚未正式公开的信息。加强内幕信息管理是防控内幕交易的重要环节，对从源头上遏制内幕交易具有重要意义。各地区、各相关部门要建立完善内幕信息登记管理制度，提高防控工作的制度化、规范化水平。
一是抓紧制定涉及上市公司内幕信息的保密制度，包括国家工作人员接触内幕信息管理办法，明确内幕信息范围、流转程序、保密措施和责任追究要求，并指定负责内幕信息管理的机构和人员。二是尽快建立内幕信息知情人登记制度，要求内幕信息知情人按规定实施登记，落实相关人员的保密责任和义务。三是完善上市公司信息披露和停复牌等相关制度，督促上市公司等信息披露义务人严格依照法律法规，真实、准确、完整、及时地披露信息。四是健全考核评价制度，将内幕交易防控工作纳入企业业绩考核评价体系，明确考核的原则、内容、标准、程序和方式。五是细化、充实依法打击和防控内幕交易的规定，完善内幕交易行为认定和举证规则，积极探索内幕交易举报奖励制度。
所有涉及上市公司重大事项的决策程序，都要符合保密制度要求，简化决策流程，缩短决策时限，尽可能缩小内幕信息知情人范围。研究论证上市公司重大事项，原则上应在相关证券停牌后或非交易时间进行。
三、明确职责，重点打击
证券监督管理部门要切实负起监管责任，对涉嫌内幕交易的行为，要及时立案稽查，从快作出行政处罚；对涉嫌犯罪的，要移送司法机关依法追究刑事责任，做到有法必依，执法必严，违法必究；对已立案稽查的上市公司，要暂停其再融资、并购重组等行政许可；对负有直接责任的中介机构及相关人员，要依法依规采取行政措施，暂停或取消其业务资格。公安机关在接到依法移送的案件后，要及时立案侦查。各级监察机关、各国有资产监督管理部门要依据职责分工，对泄露内幕信息或从事内幕交易的国家工作人员、国有（控股）企业工作人员进行严肃处理。
各地区要按照依法打击和防控资本市场内幕交易工作的部署和要求，加强组织领导，落实责任主体，进一步细化和落实各项制度，完善配套措施和办法，强化监督，严格问责，积极支持和配合有关方面做好相关工作。
各地区、各相关部门要认真按照法律法规规定，各司其职，协同配合，建立和完善案件移送、执法合作、信息管理、情况沟通等工作机制，形成上下联动、部门联动、地区联动的综合防治体系和强大打击合力。证监会要会同公安部、监察部、国资委、预防腐败局等部门抓紧开展一次依法打击和防控内幕交易专项检查，查办一批典型案件并公开曝光，震慑犯罪分子。
SECURITIES AND FUTURES COMMISSION ORDINANCE ——附加英文版
Hong Kong
SECURITIES AND FUTURES COMMISSION ORDINANCE
(CHAPTER 24)
ARRANGEMENT OF SECTIONS
ion
I PRELIMINARY
hort title
nterpretation
II SECURITIES AND FUTURES COMMISSION
ecurities and Futures Commission
unctions of Commission
onstitution of Commission
ommission may establish committees
taff of Commission
eneral powers of Commission
elegation and sub-delegation of Commission's functions
Advisory Committee
Directions to Commission
Annual report of Commission
Commission to furnish information
Financial year and estimates of income and expenditure
Accounts
Auditors and audit
Investment of funds
III SECURITIES AND FUTURES APPEALS PANEL
Constitution of Appeals Panel
Appeals (registration, forfeiture and notices)
Hearing of appeals by tribunal
Procedure for appeals
Case stated
IV ADDITIONAL REGISTRATION REQUIREMENTS
Applications under section 51 of Securities Ordinance or section
30 of
odities Trading Ordinance; supplementary provisions
Applicant under Securities Ordinance or Commodities Trading
Ordinance
urnish information to Commission
Certificates of registration to continue in force
Section 23 (2) and (3) to apply to inquiries under section 56 of
rities Ordinance or section 36 of Commodities Trading Ordinance
Registered persons to notify Commission where records etc. kept
Financial resources rules
Modification of financial resources rules in particular cases
V REGULATION OF REGISTERED PERSONS' BUSINESS, ETC.
Supervision
Information relating to transactions
Certification to High Court relating to non-compliance under
section
r 31 33. Investigations
Returns
Production of computerized information
Magistrate's warrant
Destruction etc. of documents
Powers of intervention
Restriction of business
Restriction on dealing with assets
Maintenance of assets
Provisions relating to notices under section 39, 40, 41 or 43
Withdrawal, substitution or variation of notices under section
39, 40
1 44. Appeals against notices under this Part
Winding-up orders
Receiving orders
VI SPECIAL PROVISIONS RELATING TO EXCHANGE COMPANIES AND
RING HOUSES 47. Transfer and resumption of functions
Information: Exchange Companies and clearing houses
Notice of closure or re-opening
Additional powers--restriction notices relating to Exchange
Companies
clearing houses
Additional powers--suspension orders relating to Exchange
Companies
clearing houses
VII FUNDING
Levies
Appropriation
Fees and other charges
VIII MISCELLANEOUS
Injunctions to restrain contraventions
Waiver or modification of requirements
Immunity, etc.
Liability of directors, etc.
Evidence
Preservation of secrecy, etc.
Service of notices
Penalties for offences
Prosecution of certain offences by Commission
Dissolution of Provisional Securities and Futures Commission
Limited
transfer of property
Transitional
DULE Functions of Commission to which section 9 does not apply
establish the Securities and Futures Commission and to amend the
law
ting to dealing in securities and trading in futures contracts;
and to
ide for connected or incidental matters.
he Ordinance other than sections 27 (1) to (8), 30, 31, 32 and
65 as
with item 1 (b) of paragraph 4 of Schedule 2 insofar as they
relate
he repeal of sections 122 and 123 of the Securities Ordinance
y 1989 L. N. 126 of 1989
remaining provisions: 1 August 1989] L. N. 230 of 1989
PART I PRELIMINARY
hort title
Ordinance may be cited as the Securities and Futures
Commission
nance.
nterpretation
his Ordinance, unless the context otherwise requires-
aring house" means a clearing house within the meaning of section
2
of the Commodities Trading Ordinance (Cap. 250) or a
recognized
ring house within the meaning of section 2 of the Securities
(Clearing
es) Ordinance (Cap. 420); (Amended 66 of 1990 s. 2; 68 of 1992
s. 20)
Commission" means the Securities and Futures Commission
established
ection 3; "Commodity Exchange" has the meaning assigned to
it by
ion 2 (1) of the Commodities Trading Ordinance (Cap. 250);
pany" means any company within the meaning of the Companies
Ordinance
. 32) and includes an overseas company within the meaning of
that
nance or any other body corporate incorporated in Hong Kong
having a
e capital;
a equipment" has the meaning assigned to it by section 27;
a material" means any document or other material used in
connection
or produced by data equipment;
ablishment day" means the day on which section 3 comes into
operation;
hange Company" means-
the Stock Exchange Company; or
the Futures Exchange Company,
"Exchange Companies" means both of those companies;
cutive director" and "non-executive director" mean a director
of the
ission who is appointed under section 5 as an executive director
and a
executive director thereof, respectively; "exempt dealer"
has the
ing assigned to it by section 2 (1) of the Securities Ordinance
(Cap.
;
ancial resources rules" means rules made under section 28;
"financial
" means the period specified in section 14 (1);
m" has the meaning assigned to it by section 2 (1) of the
Commodities
ing Ordinance (Cap. 250);
ction" includes power and duty;
ures contract" has the meaning assigned to it by section 2 (1)
of the
odities Trading Ordinance (Cap. 250);
ures Exchange Company" means the Exchange Company within the
meaning
ection 2 (1) of the Commodities Trading Ordinance (Cap. 250);
up of companies" has the meaning assigned to it by section 2 (1)
of
Companies Ordinance (Cap. 32);
etary Authority" means the Monetary Authority appointed under
section
f the Exchange Fund Ordinance (Cap. 66); (Added 82 of 1992 s. 6)
icer", in relation to a company, has the meaning assigned to
it by
ion 2 (1) of the Companies Ordinance (Cap. 32);
el" means the Securities and Futures Appeals Panel
established by
ion 18; "property investment arrangements" means
investment
ngements as defined in relation to property other than
securities by
ion 2 of the Protection of Investors Ordinance (Cap. 335);
ord or other document" includes--
a book, voucher, receipt or data material, or information
which is
rded in a non-legible form but is capable of being reproduced
in a
ble form; and (b) any document, disc, tape, sound track or
other
ce in which sounds or other data (not being visual
images) are
died so as to be capable (with or without the aid of other
equipment)
eing reproduced and any film (including a microfilm), tape or
other
ce in which visual images are embodied so as to be
capable (as
esaid) of being reproduced;
istered person" means a person who is registered under the
Securities
nance (Cap. 333), the Commodities Trading Ordinance (Cap.
250) (or
those Ordinances) as a dealer, dealing partnership,
dealer's
esentative, investment adviser, commodity trading adviser,
investment
sers' partnership, investment representative or a commodity
trading
ser's representative;
relevant Ordinances" means this Ordinance, Part II of the
Companies
nance (Cap. 32) (insofar as that Part relates, whether
directly or
rectly, to the performance of functions by the Commission in
relation
rospectuses and purchase by a company of its own shares) and Part
XII
hat Ordinance (insofar as that part relates, whether
directly or
rectly, to the performance of functions by the Commission in
relation
rospectuses), the Securities Ordinance (Cap. 333), the
Commodity
anges (Prohibition) Ordinance (Cap. 82), the Commodities
Trading
nance (Cap. 250), the Protection of Investors Ordinance (Cap.
335),
Stock Exchanges Unification Ordinance (Cap. 361), the Securities
aring Houses) Ordinance (Cap. 420), the Securities
(Disclosure of
rests) Ordinance (Cap. 396) and the Securities (Insider
Dealing)
nance (Cap. 395); (Amended 62 of 1990 s. 41; 68 of 1992 s. 20;
87 of
s. 2) "securities" has the meaning assigned to it by section 2
(1) of
Securities Ordinance (Cap. 333);
ck Exchange Company" means the Exchange Company within the
meaning of
ion 2 (1) of the Stock Exchanges Unification Ordinance (Cap. 361);
ding in commodity futures contracts" has the meaning assigned to
it by
ion 2 (1) of the Commodities Trading Ordinance (Cap. 250);
bunal" means a tribunal appointed under section 20;
fied Exchange" has the meaning assigned to it by section 2 (1)
of the
k Exchanges Unification Ordinance (Cap. 361).
PART II SECURITIES AND FUTURES COMMISSION
ecurities and Futures Commission
There is hereby established a body to be known as the Securities
and
res Commission.
The Commission shall be a body corporate with power to sue
and be
. (3) The receipts of the Commission shall not be subject to
taxation
r the Inland Revenue Ordinance (Cap. 112).
(a) The Commission shall provide itself with a seal.
The seal of the Commission shall be authenticated by the signature
of
chairman or deputy chairman of the Commission or, if both the
chairman
deputy chairman of the Commission are absent from Hong Kong or
unable
ct, the signature of some other director of the Commission
authorized
t to act in that behalf.
unctions of Commission
The Commission shall have the following functions--
to advise the Financial Secretary on all matters
relating to
rities, futures contracts and property investment arrangements;
without prejudice to any duties imposed or powers conferred
on any
r person in regard to the enforcement of the law
relating to
rities, futures contracts and property investment arrangements,
to be
onsible for ensuring that the provisions of the relevant
Ordinances,
the provisions of any other Ordinance so far as they
relate to
rities, futures contracts and property investment
arrangements, are
lied with;
to report to the Financial Secretary the occurrence of any dealing
in
tion to securities which it reasonably believes or suspects to
be an
der dealing within the meaning of section 9 of the Securities
(Insider
ing) Ordinance (Cap. 395); (Amended 62 of 1990 s. 42)
to be responsible for supervising and monitoring the activities
of the
ange Companies and clearing houses;
to take all reasonable steps to safeguard the interests of
persons
ing in securities or trading in futures contracts or entering
into
erty investment arrangements;
to promote and encourage proper conduct amongst members
of the
ange Companies and clearing houses, and other registered persons;
to suppress illegal, dishonourable and improper practices in
dealing
ecurities, trading in futures contracts, entering into
property
stment arrangements, and the provision of investment advice or
other
ices relating to securities, futures contracts and property
investment
ngements;
to promote and maintain the integrity of registered
persons and
urage the promulgation by registered persons of balanced and
informed
ce to their clients and to the public generally;
to consider and suggest reforms of the law relating to
securities,
res contracts and property investment arrangements;
to encourage the development of securities and futures markets
in Hong
and the increased use of such markets by investors in Hong Kong
and
where; (k) to promote and develop self-regulation by market
bodies in
securities and futures industries;
subject to the provisions of this Ordinance, to co-operate with
and
st authorities or regulatory organizations, in Hong Kong or
elsewhere,
are concerned with securities and futures, or with banking,
insurance
ther financial services or with the affairs of corporations;
(Added 67
991 s. 2)
to perform any other functions conferred by or under
any other
nance.
As regards any function, the Commission may, for the
guidance of
stered persons and others, prepare and cause to be published in
the
tte guidelines indicating the manner in which, in the absence of
any
icular consideration or circumstance, it proposes to
perform the
tion.
The Commission may from time to time engage such
consultants or
sers as it may consider necessary to assist the Commission
in the
ormance of its functions. (4) Nothing in subsection (1) (k)
shall be
rded as limiting or otherwise affecting any other function
of the
ission.
onstitution of Commission
Subject to subsection (2), the Commission shall consist of a
chairman
inted by the Governor and such uneven number, not being less than
7,
ther directors so appointed as the Governor may determine; and
when
number of such other directors ceases to be an uneven
number the
rnor shall make such appointment or appointments as may be
necessary
omply with this subsection.
Half of the directors of the Commission, including the chairman,
shall
ppointed to be executive directors and the remainder
shall be
inted to be non-executive directors.
The Governor may appoint an executive director to be deputy
chairman
he Commission.
(a) If no appointment has been made under subsection (3) or if
the
ce of deputy chairman of the Commission is vacant, the
Financial
etary may designate an executive director to act as chairman of
the
ission during any period during which the chairman of the
Commission
nable to act as chairman due to illness or other incapacity
or is
nt from Hong Kong.
A designation under this subsection shall cease when revoked
by the
ncial Secretary or an appointment is made under
subsection (3),
hever first occurs. (5) The terms and conditions of office
of a
ctor of the Commission shall be such as the Governor may
determine.
A director of the Commission may at any time resign his
office by
er sent to the Governor.
A director of the Commission shall be paid by the Commission
such
neration, allowances or expenses as the Governor may determine.
The Governor may by notice in writing remove from office any
director
he Commission whose removal appears to him to be desirable
for the
ctive performance by the Commission of its functions.
Meetings of the Commission shall be held as often as may be
necessary
the performance of its functions, and may be convened by the
chairman
he deputy chairman or any 2 other directors.
If the office of chairman of the Commission is vacant or the
chairman
he Commission is unable to act as chairman due to illness or
other
pacity or is absent from Hong Kong the deputy chairman or an
executive
ctor designated under subsection (4) shall act as chairman
in his
e.
At a meeting of the Commission--
the chairman shall be chairman of the meeting; or
if the chairman is not present, the deputy chairman shall be
chairman
he meeting; or
if neither the chairman nor the deputy chairman is
present, the
ctors present shall choose one of their number to be chairman of
the
ing.
The quorum for a meeting of the Commission shall be 4 directors
of
2 shall be executive directors and 2 shall be non-
executive
ctors.
Each director of the Commission present at a meeting thereof
shall
a vote. (14) (a) Every question for decision at a meeting of
the
ission shall be determined by a majority of votes of the
directors
ent and, in the event that voting is equally divided,
subject to
graph (b) the chairman of the meeting shall have a casting vote.
(b)
chairman of a meeting shall not exercise a casting vote until
after he
consulted the Financial Secretary as regards that exercise.
The Commission may act notwithstanding a vacancy among its
directors.
The Commission shall organize and regulate its
administration,
edure and business.
ommission may establish committees
The Commission may establish standing or special committees
and may
r or assign to any such committee any matter for
consideration,
iry or management by the committee.
The Commission may appoint any person to be a member of any
committee
blished under this section, whether that person is a director of
the
ission or not. (3) Any reference or assignment under
subsection (1)
every appointment under subsection (2) may be withdrawn or
revoked by
Commission at any time, and no such reference or assignment
shall
ent the performance by the Commission of any of its functions.
A committee established under this section may elect any
of its
ers to be chairman and may regulate its own procedure and
business;
in the exercise of its powers under this subsection such
committee
l be subject to and act in accordance with any direction given
to the
ittee by the Commission for the purposes of this subsection.
Meetings of a committee established under this section shall be
held
uch times and places as the chairman of that committee may,
subject to
ection (4), determine.
taff of Commission
The Commission may from time to time employ persons who shall be
paid
remuneration and allowances and shall hold their employment on
such
r terms and conditions as the Commission shall determine.
The Commission may make arrangements for or in respect
of the
ision and maintenance of such schemes (whether contributory or
not)
the payment to its employees and their dependants of such
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