算法交易操纵证券市场的追责路径

    Paths to Hold Algorithmic Trading Accountable for Manipulating the Securities Market

    • 摘要: 算法交易可以习得操纵证券市场的方法,并在技术效率优势与算法同质性的加持下突破操纵的自限性,甚至引发股市闪崩等风险。人工智能不具有法律主体资格,证券交易者与算法服务提供者对算法交易的风险具有控制力,应作为操纵责任主体。鉴于算法交易具有自主性,交易者可以通过诱导操纵的方式掩盖其意图,因而追责时需要利用信息监管工具,根据不合理交易情节,或是结合算法同质化训练等事实,推断交易者具有操纵故意。鉴于“算法黑箱”问题以及操纵风险的现实性,应当增设过失作为操纵责任的过错形态,并对服务提供者采取过错推定,服务提供者需证明自身尽到防范操纵的注意义务,包括反操纵的提示与监测,以及通过模型解释算法不具有缺陷。

       

      Abstract: Algorithmic trading can learn methods of manipulating the securities market and, with its advantages in technical efficiency and the homogeneity of algorithms, can break through the “self-deterrence” of manipulation, even triggering risks such as flash crashes. Since artificial intelligence lacks legal personhood, both securities traders and algorithm service providers—who have control over the risks of algorithmic trading—should be deemed responsible subjects for the manipulation. Given the “autonomous nature” of algorithmic trading, traders may conceal their manipulative intent through inducement-based manipulation. Therefore, when pursuing liability, information-based supervisory tools should be utilized to infer manipulative intent from unreasonable trading patterns or from facts such as algorithmic homogeneity in training. Considering the “black box” problem of algorithms and the real risks of manipulation, negligence should be added as a fault type for manipulation liability. Moreover, a presumption of fault should be imposed on service providers, who must prove that they have fulfilled their duty of care to prevent manipulation. Including providing anti-manipulation warnings and monitoring, as well as demonstrating through model interpretation that the algorithm is free from defects.

       

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