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近年来报刊经常反映,投资者用于证券投资的资金、证券往往发生暂时性缺失——要么是填单买进时被告知资金帐户上没有足够的资金,要么是卖出时被告知股票帐户上没有足够的股票。通常,经投资者再三追问,缺失的资金或股票又回到了投资者的名下。为什么投资者的资金或证券会发生暂时性的缺失?直观看,至少有两个原因:①券商工作人员挪用投资者的股票或资金牟取私利。②券商擅自利用投资者的股票或者资金提供给其他投资者进行融资或融券交易。这两种情况都是利用不属于自己的资金或者证券从事证券交易,即所谓偷鸡下蛋,暗中还鸡不还蛋的无本生意。问题是,到底该怎样把握这种行为的法律性质?一说应以挪用公款认定,一说应叫做盗用,一说应称为非法透支交易,一说应视为信用交易。笔者认为,如以“地下信用交易”概括这种行为的法律性质也许更加贴切,因为这种行为与规范的信用交易、挪用公款都有着明显的区别。
In recent years, the newspapers and magazines have often reported that investors often used funds for securities investments and that the securities tended to be temporarily missing - either being informed at the time of the purchase of the order that they did not have sufficient funds on the funds account or that they were told to stock accounts on the sale Not enough stock. Often, investors ask again and again, missing funds or shares are back in the name of investors. Why investors ’funds or securities will be temporarily missing? Intuitively, there are at least two reasons for this: ① Brokerage agents divert investors’ funds or stocks for personal gain. ② brokers unauthorized use of investors’ stock or funds available to other investors for financing or margin trading. Both of these cases involve the use of securities not traded in securities or securities owned by oneself, that is, the so-called stealing and laying of eggs, and the non-profitable business of not returning eggs. The question is exactly how to grasp the legal nature of this act? One should say that misappropriation of public funds should be made, one for what should be called misappropriation, one for illegal overdraft, one for credit transactions. The author believes that if the “underground credit transactions” to summarize the legal nature of this behavior may be more appropriate, because this behavior and the norms of credit transactions, appropriation of public funds are significantly different.