"Har du varit ute och shoppat, Jacob?" : En studie av Finansinspektionens utredning av insiderbrott under 1990-talet

Sammanfattning: In this dissertation the Swedish Financial Supervisory Authority's (FSA) investigation of suspected insider trading offences is examined and analysed. The aim of the study is to describe FSA's investigative activity in insider cases during the 1990?s, a period of both increased activity on the Swedish stock market as well as changed regulation. The study places the investigation of insider offences into a wider context of regulation of the securities market. The empirical material consists of the chronological diaries kept in 344 insider cases between 1991 and 1999. The main theoretical theme in the study is case-processing activities in public bureaucracies, and the theoretical starting-point is sociological neo-institutional organization analysis, combined with an action-focused perspective of activities at the micro-level of organizations. Macro- and micro levels of organizational life are intertwined, and grass root level activities can be seen as parts of a transformation process where desicion-making in complex micro-settings contributes to the creation of macro-structures. Insider trading has gradually been subject to more extensive criminalization during the last three decades of the 20th century, and the legal rules provide space for discretionary decisions. Suspected offences are sent to the prosecutor, since FSA has no authority itself to punish an illegal act. While a subordinate activity in terms of penal sanctions (the penal law perspective), the investigative activities at FSA can simultaneously be thought of as a proactive and transparency-achieving effort (the supervision perspective). The findings suggest that illegal insider trading should be thought of as a corporate phenomenon in terms of formal and informal rules about information handling and trading in the company's own securities, rather than an individually caused phenomenon disentangled from social and cultural factors. The investigating efforts at FSA are clearly made with one eye focused on the prosecutor and the possible successful prosecution of the case. The investigator often thinks the investigated behavior is highly inappropriate even though it cannot be proven illegal. While the private marketplaces have been given the main responsibility for the monitoring and detection of illegal behaviour on the securities market, the cases initiated by the marketplaces? own monitoring units often do not lead to referred investigations from FSA to the prosecutor. The majority of cases sent to the prosecutor are initiated by the FSA investigators themselves. An increased work load during the last years of the 1990's resulted in longer investigation times, fewer requests for supporting information, and an increase in cases closed by FSA with reference to time-delay. At the same time a more selective and offensive investigative strategy was embraced by FSA, as a comparatively large number of cases were sent to the prosecutor after shorter periods of investigation. The underlying idea in the current securities market regulative model, with shared responsibilities among various public and private bodies, is that the different tasks in the process are possible to uncouple, given a functioning co-ordination between the market, the regulators and the prosecutor. The study points to institutional disparaties concerning both world views and incitaments that must be over-bridged in order to secure a functioning regulative order against market abuse. The findings stress that regulation is not merely a matter of how the law is written, but also how it is implemented in the every day activities at the micro-level of organizations.

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