Fiduciary Duty and Formation Date of Merger and Reorganization Insider Information

The judicial interpretation is more principled in determining the formation date of insider information, and takes information fairness as the theoretical basis, resulting in different standards for determining the formation date  and the risk of public power overstepping the boundaries between public and private. The theory of fiduciary   duty of insider information should be regarded as the legitimate basis for controlling insider trading. Starting   from the “disclosure or trading” obligation of the insider, the insider’s expectation possibility should be fully considered. It is proposed that certainty, non-publicity, and materiality should be taken as the essential attributes of insider information, and greater feasibility and consistency of information disclosure time point are the substantive and formal standards of certainty. Starting from the basic element of civil legal act, meaning expression, combined with the practice of M&A and reorganization, it is proposed that reaching agreement is a general rule  for the recognition of the formation date of M&A and reorganization under the dimension of multi-party   meaning expression, which conforms to the standard of greater possibility of realization. Compliance with the disclosure time point requirements is a special rule for the recognition of the formation date of mergers and acquisitions under the unilateral meaning dimension, which conforms to the consistency standard of the  information disclosure time point. At the same time, from the perspective of due process, it is suggested to introduce third-party identification opinions and the “safe harbor” rule as a supplementary means to accurately identify the formation date of insider information and prevent regulatory agencies from overstepping the public and private boundaries.