| As the same situation as America in the1980s, China is currently facing the prevention and control of insider trading crime situation, which is very grim. A number of insider trading cases happen, in which people involved in insider trading are very complicated, actions of insider trading are diverse and means of insider trading are much hidden. Insider trading causes confusion in the securities and futures markets, undermines the order of securities and futures markets, violates the legitimate rights and interests of investors in general, so it is necessary for our country to strengthen the regulation of insider trading behavior through laws and regulations. We study the legislation and theory on Insider Trading Crime between China and the United States and compare similarities and differences on Insider Trading Crime provisions between Chinese and American law, which has great significance for us to understand the weakness of our country regulations and improve them.In addition to the introduction, this thesis consists of five chapters. The introduction part focuses on illustrating research background and significance, contemporary progress of questions related to Insider Trading Crime both domestic and abroad, as well as main ideas of this study.The main body of this thesis is divided into five chapters. The first chapter introduces the Sino-America legislation on the crime of insider trading, then on this basis conducts the comparative study Sino-America legislative provisions on the crime of insider trading. Sino-America legislative provisions on the securities and futures insider trading have commons and differences. Both China and the United States clearly punish insider trading on securities and futures markets in the law. There are differences Sino-America on the prohibition of insider trading in the following six aspects:First, the regulation for of acts of insider trading between China and the United States is not the same. Second, the penalties for insider trading between the two countries are different. Third, in the regulation of insider trading, the U.S. not only has the statutory law, but has case law. But China only has the statutory law and has no the case law. Fourth, the charges investigated for criminal responsibility by the insider trading between China and American legislation are different. Fifth, the legal punishment under the Sino-America legislation is different. Sixth, the mode of the criminal legislation of the two countries on the crime of insider trading is different. Then the author specializes in the Sino-America mode of the criminal legislation of on the crime of insider trading, outlines their legislative background and their own advantages, and proposes that China should maintain the existing model of Penal Code and ancillary criminal law combined and on this basis should improve it.The second chapter respectively introduces the basis of Sino-America criminal legislation of insider trading crime. Although American legislation explicitly prohibits insider trading, American theory circles have different opinions on whether insider trading should be prohibited by legislation. There have two different points of views that are the theory of in favor of insider trading and the theory of against insider trading. On the basis of criminal legislation of insider trading crime, China's theory circles also have different opinions. The author believes that the crime of insider trading both violate the order of the securities and futures market and the legitimate rights and interests of the majority of investors.The third Chapter comparatively studies on basic concepts of securities, insider information and insider in the Sino-US crime of insider trading. There are two differences on provisions of securities in the Sino-U.S. First, the scope of the provisions of U.S. law on the securities is very broad, but the range of the provisions of Chinese law on the securities is very narrow. Second, the U.S. Federal Court in the case law specifically proposed methods of analysis of securities, however, China's securities law does not provide the methods of analysis of securities and China's Supreme People's Court did not make a judicial interpretation on how to identify securities. The author believes that China should learn from U.S. regulations on securities, amend China's Securities Act, and expand the scope of the securities, and increase the regulation of "the scope of the securities, determined in accordance with the provisions of the laws and regulations" in the180clause of the Penal Code. At the same time, China's Supreme People's Court should make specific judicial interpretation on how to identify securities. There are two differences on legal provisions of insider information between China and the United States, as follows: Firstly, China and the United States have different ways on the provisions of the meaning and scope of insider information. American laws neither define insider information and nor illustrate the scope of the insider information. The meaning of insider information gradually developed from the case law. Unlike American laws, Chinese laws and regulations clearly define the meaning and scope of the securities and futures insider information. Secondly, while both Sino-America laws define the confidentiality and materiality as characteristics of insider information, the two countries identify these two features in different standards. In America, the standard of determining inside information confidentiality is whether significant information has been digested by the market, which is usually judged by the court according to different cases combined with a variety of factors. In China, the standard of determining inside information confidentiality is provided by the "Securities Act" and "the listed companies' information disclosure management approach ". To identify the materiality of inside information, American laws adopt the generalized legislation and the subjective judgments, while Chinese laws use the generalized plus enumerated legislative and the objective judgments. Although both Chinese and American laws provide insiders, there are differences in the title and range of insider between Chinese and American laws. American laws adopt "insider" to refer to the defendant of insider trading crime, however, Chinese current securities law and criminal law all use "informed staff of insider information and people illegal access to inside information" to refer to the defendant of insider trading crime. The author believes that the defendant of insider trading crime should adopt the term "insider". The range of American insiders and China's insiders has cross-relations. The scope of "informed staff" that China's Securities Act section74provides is equivalent to "the traditional insiders and constructive insiders" of American laws."People illegal access to inside information" that Chinese securities law and criminal law provide is similar to " tippee and misappropriator " in the American law. But from the extensive view, the scope of American insiders is greater than that of China's Insider. The author suggests that China's law should expand the scope of the defendant of insider trading crime by the form of amendment or judicial interpretation and should clearly provide that the insiders are people who are aware of insider information, which should be identify based on whether to grasp the inside information or not, as long as people know insider information, regardless of their access to information means legal or illegal.The fourth Chapter focuses on Sino-American provisions of insider trading acts. The behaviors of crime of insider trading of the two countries are similar. The two countries laws provide that insiders trade with inside information about the securities, insiders leak insider information to another person and insiders recommend others buying and selling securities. There have different opinions on whether insider trading acts should be based on "using insider information" in Chinese and American theory and practice circles. The author believes that the establishment of the crime of insider trading need not to be based on using insider information, as long as we can prove that traders know the insider information in the implementation of the transaction, which it is presumed that traders use insider information, but allows the perpetrator to prove that their trading behavior is not relevant to their knowledge of inside information. Does leak of behavior constitute the crime of insider trading? There are different opinions in the Sino-American theoretical circles. The author believes that whether non-insiders positively acquire insider information, or passively accept the insider information, as long as after illegal access to insider information they who recommend others to buy or sell securities and futures or disclose inside information will constitute the crime of insider trading, when at the same time there have other conditions that compose of the crime of insider trading. But non-insiders who are occasional access to inside information to recommend others to buy or sell securities and futures or to disclose inside information do not constitute the crime of insider trading. Both Chinese law and American law provide that intention constitutes the culpability of the crime of insider trading and negligence does not constitute the crime of insider trading. But Chinese law and American law have some differences in whether the establishment of the crime of insider trading requires a specific purpose or not, as well as how to prove the intention. When insiders implement the insider trading, Chinese law and American law do not require insiders with purpose to obtain illegal profits, or avoid loss. However, when tippers disclose inside information, American law requires tippers with purpose to obtain illegal profits, or avoid loss and Chinese law does not require tippers with purpose to obtain illegal profits, or avoid loss. When U.S. justices identify the intention of insiders, they adopt the principle of presumption of fault. The author believes that China can learn from the practice of the United States. When China justices identify the intention of insiders, they should adopt the principle of presumption of fault. That is, as long as an insider implements the insider trading or disclose inside information to a third party, he are presumed with intention. But the perpetrator can adduce evidence to prove that he has no intention.The fifth chapter comparatively studies on the criminal responsibility of insider trading between Chinese law and American law, which mainly discuss the identification of charges, punishment, Conviction circumstances and Sentencing of insider trading offenses. American law provides that no matter what insiders themselves engage in insider trading, or insiders disclose insider information to others, or insiders suggest others engaging in insider trading, these are all identified as "the crime of insider trading". The Criminal Theory circles of Chinese have different views on what charges should be generalized about the crime of Penal Code section18O.The author believes that China should learn from the practice of the United States and generalize the crime of Penal Code section180as "the crime of insider trading" Although both Chinese and American law provide that the crime of insider trading will be punished with deprivation of freedom penalty and fine, they still have differences on the punishment of the crime of insider trading, as follows, First, the development process of punishment of insider trading crime between Chinese and American law are different. Second, American law provides that the crime of insider trading is sentenced with fine and imprisonment, but Chinese law provides that the crime of insider trading is sentenced with fine, detention and imprisonment. Third, the deprivation of freedom penalty which American law provides for the crime of insider trading is severer than that of Chinese law. Fourth, American law provides that when natural persons and legal persons commit the crime of insider trading, they all will be sentenced with "fixed fine". However, Chinese law provides that when natural persons commit the crime of insider trading, they will be sentenced with "multiple fines", while when legal persons commit the crime of insider trading, they will be sentenced with "no limit fine"."The United States Sentencing Guidelines" provides a specific set of sentencing procedures and standards for the crime of insider trading. It clearly provides that the crime of insider trading should be sentenced by the standard of he proceeds of crime and that the level of the crime of insider trading will be improved by the increase of proceeds of crime, the number of victims and the credit status abused by the defendant. To a certain extent, it limits the sentencing discretion of judges. Compared with the sentencing provisions of the crime of insider trading on American law, Chinese law provides for the sentencing of the crime of insider trading simply. The author believes that China can learn from the sentencing procedures and standards for the crime of insider trading provided by "the United States Sentencing Guidelines". Chinese law can provide that the increase of proceeds of crime, the number of victims and the credit status abused by the defendant will be as the statutory sentencing circumstances.
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