SECURITIES (INSIDER DEALING) ORDINANCE ——附加英文版
Hong Kong
SECURITIES (INSIDER DEALING) ORDINANCE
(CHAPTER 395)
ARRANGEMENT OF SECTIONS
ion
I PRELIMINARY
hort title
nterpretation
pplication
Connected with a corporation"
ossession of relevant information obtained in privileged
capacity
Dealing in securities"
Take-over offer"
Relevant information"
II INSIDER DEALING
hen insider dealing takes place
Certain persons not to be held insider dealers
Trustees and personal representatives
Exercise of right to subscribe for or acquire securities
Duty of officers of corporation
Insider dealing not void or voidable
III INSIDER DEALING TRIBUNAL
Constitution of Tribunal Inquiries by Tribunal
Inquiries into insider dealing
Powers of Tribunal
Further powers of Tribunal to obtain information
Incriminating answers
Offences
Privileged information Report and orders of Tribunal
Report of Tribunal following inquiry
Orders etc. of Tribunal
Order against officer of corporation
Limitation on aggregate amount of penalties
Witnesses' expenses
Expenses of investigation and inquiry
Form and proof of order of Tribunal
Order of Tribunal may be registered in Court
Offence
IV APPEALS
Appeal to Court of Appeal
Powers of the Court of Appeal on appeal
Stay of execution on appeal
V MISCELLANEOUS
Offences by corporation, etc.
Limitation on commencement of proceedings
Chief Justice may make rules
44. (Omitted)
Whole document:
dule.
rdinance to amend the law relating to insider dealing in
securities;
for connected purposes.
eptember 1991] L. N. 269 of 1991
PART I PRELIMINARY
hort title
Ordinance may be cited as the Securities (Insider Dealing)
Ordinance.
nterpretation
In this Ordinance, unless the context otherwise requires--
ociate", in relation to a person entitled to exercise or control
the
cise of voting power in relation to a corporation, means--
that person's spouse, reputed spouse, person co-habiting
with that
on as a spouse, that person's brother, sister, parent,
step-parent,
d (natural or adopted) or step-child;
any corporation of which that person is a director;
any person who is an employee or partner of that person;
if that person is a corporation--
any director of that corporation;
any related corporation of that corporation; and
) any director or employee of any such related corporation; and
if that person has with any other person an agreement or
arrangement
respect to the acquisition, holding or disposal of shares or
other
rests in that corporation or under which they undertake
to act
ther in exercising their voting power in relation to it, that
other
on;
k or other document" includes--
books of a banker;
cheques, orders for the payment of money, bills of
exchange, and
issory notes in the possession or under the control of a banker;
securities in the possession or under the control of a banker,
whether
ay of pledge or otherwise;
any document or record used in the ordinary course of business
of a
;
any record so used which is kept otherwise than in a legible form
and
apable of being reproduced in a legible form; and
any accounts or deeds;
mission" means the Securities and Futures Commission
established by
Securities and Futures Commission Ordinance (Cap. 24);
pany" means a company as defined in section 2 (1) of the
Companies
nance (Cap. 32);
troller", in relation to a corporation, means any person--
in accordance with whose directions or instructions the
directors of
corporation or of another corporation of which it is a subsidiary
are
stomed to act; or
who, either alone or with any associate, is entitled to exercise,
or
rol the exercise of, more than 33% of the voting power at
general
ings of the corporation or of another corporation of which it
is a
idiary, and references in this Ordinance to "control"
shall be
trued accordingly; "corporation" means any company or
other body
orate or an unincorporated body, incorporated or formed either
in Hong
or elsewhere;
ector" includes--
any person occupying the position of director, by
whatever name
ed; and
any person in accordance with whose directions or
instructions the
ctors of the corporation are accustomed to act;
ument" includes any register, book, record, tape recording, any
form
omputer input or output, and any other document or similar
material
ther produced mechanically, electrically, or manually, or by any
other
s whatsoever);
h Court" means the High Court of Justice;
ding company" means a corporation which is a holding company
within
meaning of section 2 of the Companies Ordinance (Cap. 32);
uiry" means an inquiry instituted under section 16;
ider dealer" means a person who perpetrates any act which
is an
der dealing within the meaning of section 9 and also means a
person
is to be regarded as an insider dealer under section 16 (6);
ider dealing" means an insider dealing within the meaning of
section
ted securities" means securities that are listed on the
Unified
ange at the time of any insider dealing in relation
to those
rities;
icer" in relation to a corporation includes a director,
manager or
etary, and in relation to an unincorporated body includes every
member
he governing body thereof; "related corporation", in relation
to a
oration, means--
any corporation that is that corporation's subsidiary or
holding
any or a subsidiary of that corporation's holding company;
any corporation a controller of which is also a controller of
that
oration; "relevant share capital" means a corporation's issued
share
tal of a class carrying rights to vote at general meetings
of the
oration;
urities" means any shares, stocks, debentures, loan stocks,
funds,
s, or notes of, or issued by, any body, whether
incorporated or
corporated, or of any government or local government authority,
and
udes--
rights, options, or interests (whether described as
units or
rwise) in or in respect of any of the foregoing;
certificates of interest or participation in, or temporary or
interim
ificates for, receipts for, or warrants to subscribe to or
purchase,
of the foregoing; or
any instruments commonly known as securities;
sidiary" means any corporation which is a subsidiary
within the
ing of section 2 of the Companies Ordinance (Cap. 32);
bunal" has the meaning given to it in section 15;
fied Exchange" means the stock market established under section
27 of
Stock Exchanges Unification Ordinance (Cap. 361).
For the purpose of the definition of "controller", where a
person is
tled to exercise or control the exercise of 33% or more of the
voting
r at general meetings of a corporation and that
corporation is
tled to exercise or control the exercise of any of the voting power
at
ral meetings of another corporation ("the effective voting
power")
the effective voting power at general meetings of
that other
oration is taken as exercisable by that person.
A person shall not be deemed to be a person in accordance with
whose
ctions or instructions the directors of a corporation are
accustomed
ct by reason only that the directors of the corporation act on
advice
n by him in a professional capacity.
In this Ordinance securities are deemed to be listed on the
Unified
ange notwithstanding that dealings in such securities
have been
ended.
In this Ordinance a reference to an interest in securities is
to be
as including an interest of any kind whatsoever in the
securities;
accordingly there are to be disregarded any restraints or
restrictions
hich the exercise of any right attached to the interest
may be
ect.
pplication
Ordinance shall not have effect with respect to an insider dealing
in
tion to the listed securities of a corporation which has taken
place
re the commencement of this Ordinance.
Connected with a corporation"
A person is connected with a corporation for the purposes of
section 9
being an individual--
he is a director or employee of that corporation or a
related
oration; or
he is a substantial shareholder in the corporation or a
related
oration; or
he occupies a position which may reasonably be expected to give
him
ss to relevant information concerning the corporation by virtue
of--
any professional or business relationship existing between
himself (or
employer or a corporation of which he is a director or a firm of
which
s a partner) and that corporation, a related corporation or an
officer
ubstantial shareholder in either of such corporations; or
his being a director, employee or partner of a
substantial
eholder in the corporation or a related corporation; or
he has access to relevant information in relation to the
corporation
irtue of his being connected (within the meaning of paragraph (a),
(b)
c)) with another corporation, being information which relates
to any
saction (actual or contemplated) involving both those
corporations or
lving one of them and the listed securities of the other or to
the
that such transaction is no longer contemplated; or
he was at any time within the 6 months preceding any
dealing in
tion to listed securities within the meaning of section 9 a
person
ected with the corporation within the meaning of paragraph (a),
(b),
or (d).
A corporation is a person connected with a corporation
for the
oses of section 9 so long as any of its directors or employees
is a
on connected with that other corporation within the
meaning of
ection (1).
In subsection (1), "substantial shareholder" in
relation to a
oration means a person who has an interest in the relevant
share
tal of that corporation which has a nominal value equal to or
more
10% of the nominal value of the relevant share capital of
that
oration.
ossession of relevant information obtained in privileged
capacity
A public officer or a member or employee (whether such
member or
oyee is temporary or permanent, paid or unpaid) of any body
referred
n subsection (2), who in his capacity as such receives
relevant
rmation concerning a corporation shall be deemed to be a
person
ected with that corporation for the purposes of section 9.
The bodies referred to in subsection (1) are--
the Executive Council;
the Legislative Council;
the Futures Exchange Company, Stock Exchange Company or any
clearing
e;
any board, commission, committee or other body appointed by
or on
lf of the Governor or the Governor in Council under any Ordinance;
any body corporate established or incorporated by Ordinance; and
any body corporate specified by the Financial Secretary by
notice
ished in the Gazette.
In this section--
aring house" means a clearing house within the meaning of section
2
of the Commodities Trading Ordinance (Cap. 250) or authorized
under
other Ordinance to carry on business as a clearing house in
respect of
rities;
ures Exchange Company" means the Exchange Company within the
meaning
ection 2 (1) of the Commodities Trading Ordinance (Cap. 250);
ck Exchange Company" means the Exchange Company within the
meaning of
ion 2 (1) of the Stock Exchanges Unification Ordinance (Cap. 361).
In the case of a body referred to in subsection (2) which
has no
ers the reference in subsection (1) to a member shall be construed
as
ference to a member of the governing body thereof.
Dealing in securities"
the purposes of this Ordinance, a person deals in securities if
ther as principal or agent) he buys, sells, exchanges or
subscribes
or agrees to buy, sell, exchange or subscribe for, any securities
or
ires or disposes of, or agrees to acquire or dispose of, the right
to
sell, exchange or subscribe for, any securities.
Take-over offer"
his Ordinance, "take-over offer for a corporation" means an offer
made
ll the holders (or all the holders other than the person making
the
r and his nominees) of the shares in the corporation to acquire
those
es or a specified proportion of them, or to all the holders (or
all
holders other than the person making the offer and his nominees)
of a
icular class of those shares to acquire the shares of that class
or a
ified proportion of them.
Relevant information"
his Ordinance "relevant information" in relation to a
corporation
s specific information about that corporation which is not
generally
n to those persons who are accustomed or would be likely to deal
in
listed securities of that corporation but which would if
it were
rally known to them be likely materially to affect the price of
those
rities.
PART II INSIDER DEALING
hen insider dealing takes place
Insider dealing in relation to the listed securities of a
corporation
s place--
when a person connected with a corporation who is in
possession of
rmation which he knows is relevant information in relation to
that
oration deals in any listed securities of that corporation (or
in the
ed securities of a related corporation) or counsels or
procures
her person to deal in such listed securities knowing or
having
onable cause to believe that such person would deal in them;
when a person who is contemplating or has contemplated making
(whether
or without another person) a take-over offer for a corporation
and
knows that the information that the offer is contemplated or
is no
er contemplated is relevant information in relation
to that
oration, deals in the listed securities of that corporation (or
in the
ed securities of a related corporation) or counsels or
procures
her person to deal in those listed securities, otherwise than for
the
ose of such take-over;
when relevant information in relation to a corporation is
disclosed
ctly or indirectly, by a person connected with that
corporation, to
her person and the first-mentioned person knows that the
information
elevant information in relation to the corporation and knows
or has
onable cause for believing that the other person will make use
of the
rmation for the purpose of dealing, or counselling or
procuring
her to deal, in the listed securities of that corporation (or in
the
ed securities of a related corporation);
when a person who is contemplating or has contemplated making
(whether
or without another person) a take-over offer for a corporation
and
knows that the information that the offer is contemplated or
is no
er contemplated is relevant information in relation
to that
oration, discloses that information, directly or
indirectly, to
her person and the first-mentioned person knows or has
reasonable
e for believing that the other person will make use of the
information
the purpose in dealing, or in counselling or procuring
another to
, in the listed securities of that corporation (or in the
listed
rities of a related corporation);
when a person who has information which he knows is
relevant
rmation in relation to a corporation which he received
(directly or
rectly) from a person--
whom he knows is connected with that corporation; and
whom he knows or has reasonable cause to believe
held that
rmation by virtue of being so connected,
s in the listed securities of that corporation (or in the
listed
rities of a related corporation) or counsels or procures
another
on to deal in those listed securities;
when a person who has received (directly or indirectly) from a
person
he knows or has reasonable cause to believe is contemplating or
is no
er contemplating a take-over offer for a corporation,
information to
effect and knows that such information is relevant
information in
tion to that corporation, deals in the listed securities
of that
oration (or in the listed securities of a related
corporation) or
sels or procures another person to deal in those listed
securities.
An insider dealing in relation to the listed
securities of a
oration also takes place when a person who is knowingly in
possession
elevant information in relation to that corporation in any
of the
umstances described in subsection (1) --
counsels or procures any other person to deal in the listed
securities
hat corporation (or in the listed securities of a related
corporation)
he knowledge or with reasonable cause to believe that, that
person
d deal in those listed securities outside Hong Kong on any
stock
ange other than the Unified Exchange; or
discloses that relevant information to any other person
in the
ledge or with reasonable cause to believe that, that or some
other
on will make use of that information for the purpose of dealing,
or of
selling or procuring any other person to deal, in
the listed
rities of that corporation (or in the listed securities of a
related
oration) outside Hong Kong on any stock exchange other
than the
ied Exchange.
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浅论简单之债与选择之债
韩召峰
根据债的履行是否可以选择,债可分为简单之例证民选择之债。
简单之债,有的称为单纯之债,通说是指债的履行标的的只有一种,当事人只能按照该种标的的履行的债。当事人不仅不能选择其他的标的履行,而且在履行时间、方式、地点等方面都无选择的余地。因为 简单之债的当事人在债的履行上并无选择性,所以简单之债又称不可选择之债。
选择之债,是指债的履行标的有数种,当事人须从中选择一种来履行的债。因为选择之债的当事人须从数种标的中选择一种履行,因此选择之便衣面具备以下两个:第一,在履行上有可选择性。债的履行上有可选择性,可以是标的种类上的不同,如债务人给付金钱或提供劳务;可以是标的物的不同,或劳务的内容不 ;也可以是履行时间上的不同,履行方式的不同,履行地点的不同。凡在债的给付标的、履行时间、方式、地点等诸方在可供选择的债,都为选择之债。第二,须于债的履行标的特定后才能履行。选择之债的履行的虽有数咱,但当事人只能从中确定一种履行,也只有在履行标的确定后当事人才能履行债。如无须确定履行标的就可以履行,则该债不为选择之债。
区分简单之债与选择之债的意义在于,选择之债的当事人须于数种给付中选定一种履行,而简单之债不发生选择。选择之债给付的选定亦即选择之债的特定。选择之债的特定方法主要有两种:一是造反二是履行不能。给付的选择,是批当事人就选择之债的数种给付中选择一种履行的意思表示。选择是一种权利,其性质为形成权。因其行使,选择之债也?成为简单之债。选择权的归属依法律的规定或合同的约定而定,或归于债权人,或归于债务人,或归于第三人均无不可。但在法律没有明确规定,当事人也无明确约定时,选择权应归债务人一方享有。债权人或债务人有选择权的,其选择权的行使就在向他方以意思表示为之,自选择的意思到达对方发生,而无须对方承诺。第三人有选择权的,其选择权的行使应向债权人及任务人双方为之,自选择的意思表示到达后一方时生效。履行不能的特定方法,是指选择之债的数种给付只有一种可以履行百其他均发生履行不能时,则不发事人并无选择的余地,只能按可以履行标的履行。 此时,选择之债也就成为简单之债。
特定之债有广义与狭义之分。广义的特定之债是指各种特定给付的债,既包括给付特定的物,也包括给付特定的劳务、权利等。狭义的特定之债仅指债务人应给付特定的物的债,即以特定物为标的物的债。特定之债的根本特征有于,债的标的物于合成立之时即已特定,具有不可替代性。
北安市人民法院 韩召峰