中文摘要

近年來，由於社會變遷及科技發展，重大金融犯罪案件時有所聞。立法者為保障投資、健全證券市場，於民國57年制定證券交易法時，已於第155條明文禁止「操縱股價」之行為（本文簡稱「操縱行為」），並列舉各種操縱行為之類型，同時於第171條規定違犯操縱行為者，應負擔一定刑責。嗣證券交易法於民國93年修正時，除提高操縱行為之法定刑外，更於第171條第2項增訂操縱行為之加重型態。亦即，違犯操縱行為且犯罪所得達新台幣一億元以上者，應加重刑罰；該條第6項則明定沒收之範圍。據此，犯罪所得數額之認定，將影響行為人之刑度及沒收之範圍，對於被告之人身自由、財產權等權利影響甚鉅，故就操縱行為犯罪所得之認定不可不慎。
惟證券交易法並未就操縱行為犯罪所得加以定義，故操縱行為之犯罪所得應如何計算，實乃實務一大爭議。此外，證券交易法第171條第2項之修法理由雖謂，操縱行為可以操縱期間之股價與同性質同類股或大盤漲跌幅度互為比較，並乘上行為人之操縱股數作為犯罪所得之計算方法，惟此計算方法仍有未明，例如：究竟應以同性質同類股、大盤漲跌幅度為比較基準較為妥適？同性質同類股範圍如何界定？大盤或同性質同類股之漲跌幅較行為人操縱之股價更大時，應如何認定犯罪所得？均有未明。由於法條及修法理由均未明示計算方法，造成實務見解之分歧，且有不斷發回更審、延宕訴訟之情形。
為了解實務上針對各種操縱行為犯罪所得計算之標準，本文以特定關鍵字檢索各法院之判決，並選取其中較新或較有代表性之判決進行深入分析，以提供外界可資遵循之準則；同時，藉由文獻回顧及深度訪談等研究方法，就證券交易法第171條第2項關於犯罪所得之計算問題，提出可行之修法建議。

English Abstract

Due to social changes and technological development in recent years, we hear about major financial crimes from time to time. To safeguard investments and strengthen the securities market, when formulating the Securities and Exchange Act in 1968, the legislators have already stated clearly in Article 155, prohibiting the act of “manipulating stock prices” (we will refer to this as “manipulation”) and have listed various types of manipulation as examples. At the same time, those in violation of manipulations pursuant to Article 171 shall bear certain punishments. Later on, when the Securities and Exchange Act was amended in 2004, in addition to raising the statutory punishments of manipulations, the increased type of manipulation was even added in Paragraph 2 of Article 171. That is, those in violation of manipulations and have gained NT$100 million or more by the commission of an offense shall have increased punishment. Paragraph 6 of said article has stated clearly the scope of confiscation. Accordingly, the amount identified as having gained by the commission of an offense will affect the degree of punishment and scope of confiscation of the perpetrator and will have a huge impact in the personal freedom, property rights, and other rights of the defendant. Therefore, one must be extremely prudent in identifying the amount gained through the commission of manipulation.
However, the Securities and Exchange Act does not further define the amount gained through the commission of manipulation; therefore, how the amount gained through the commission of manipulation is a major controversy in practice. Furthermore, although the reason for amendment of Paragraph 2, Article 171 of the Securities and Exchange Act was that the amount gained through the commission of manipulation can be calculated with the stock price during the manipulation period and the comparison between the rate of change in shares of similar nature or in the market, and multiply it with the number of shares manipulated by the perpetrator, there are still unclear areas in this calculation method, for example: In the end, is it more appropriate to use the shares of similar nature or the market as a comparative basis? How should the scope of shares of similar nature be defined? When the rate of change in the market or the shares of similar nature is larger than the stock price manipulated by the perpetrator, how should the amount gained through the commission of an offense be identified? These are all unclear. Since both the law and the reason for amendments do not clearly express the method of calculation, this has caused differences in practical insights and there have been situations such as constant remands and delayed proceedings.
In order to practically understand the standards of calculating the amount gained through the commission of various manipulations, we have used certain keywords to search the judgment and decision of various courts and have selected the judgments and decisions that are newer or more representative to conduct in-depth analysis, so as to provide a criteria that can be followed for everyone. At the same time, through research methods, such as the review of documents and in-depth interviews, feasible recommendations for amendments on the issue of calculating the amount gained through the commission of an offense in Paragraph 2, Article 171 of the Securities and Exchange Act are proposed.

資料來源：

華藝線上圖書館