Research On The Legal Regulation Of Securities Crime Under The Background Of Capital Market Reform

At the beginning of 2020,China Securities Regulatory Commission(CSRC)has determined six key points for the reform and development of capital market,including continuously optimizing the market ecology by taking risk prevention and supervision as the starting point;taking the registration system reform as the leading point,making every effort to tackle major reform difficulties;taking the implementation of the new securities law as an opportunity,Comprehensively Strengthening the construction of market rule of law;taking promoting the survival of the fittest as the goal,promoting the improvement of the quality of listed companies;and taking science and technology as the core With the support of technical supervision and management,the efficiency of supervision will be further enhanced;with the guidance of new development concept,the quality and efficiency of serving the real economy will be improved.Based on the actual situation of the development of my country's capital market,this paper analyzes the newly added securities criminal risk content in the process of market reform,and analyzes the current criminal policies,criminal legislation,and securities investor protection in a targeted manner.The current situation and shortcomings of my country's capital market,and from this,the research on the legal regulation of securities crimes under the background of capital market reform.First,from the perspective of criminal policies,we are fighting the overall political situation of preventing and resolving financial risks,implementing the work requirements of the Financial Committee on "zero tolerance" of illegal and criminal activities in the capital market,and responding to the amendments to the Securities Law and the Criminal Law Amendment(10).1.Under the background of the promulgation,how to grasp the"standards" of "criminal" and the "needs" of "criminal",so that the scope of the Criminal Law" is internally consistent with the purpose of securities market governance,and the securities are reasonably determined The size of the crime circle is an issue that I think needs to be explored urgently.Second,from the perspective of criminal legislation,the Securities Law" as an administrative front-line law has undergone a new round of amendments,the prohibition of trading activities stipulated in Chapter 3,the information disclosure system stipulated in Chapter 5,and the information disclosure system stipulated in Chapter 13 Issues such as the new regulations of the employment prohibition system and the newly established "long-arm jurisdiction rules will affect the application of the securities crime law as a statutory crime.Among them,some problems have been dealt with simultaneously with the introduction of the Criminal Law Amendment(11)",but there are still some problems that have not been resolved through this joint revision,and there is still room for further improvement.Third,from the perspective of the effectiveness of securities investor protection,although the penalties for securities violators have become more and more severe in recent years,investors whose interests are truly damaged have not been effectively filled.They are in line with international standards and involve the participation of prosecutors.The investor protection mechanism needs to be innovatively established.Therefore,this doctoral thesis thinks that we should take the capital market reform as the research background,take the normative relationship and operation mechanism between the securities law and the criminal law as the breakthrough point,and explore the background of capital market reform from three aspects:the change of criminal justice concept and the adjustment of criminal policy,the improvement of criminal law legislation and judicial interpretation,the supplement of judicial system and the landing of supporting facilities The legal regulation of securities crime under the new situation.Except for the introduction and the rest,this article consists of seven chapters,which are as follows:The introduction part summarizes the specific status quo of the legal regulation of securities crimes,and briefly summarizes the perspectives and methods studied in this paper.The first chapter is the impact of capital market reform on securities crimes.This chapter introduces the possible impact of securities crimes in the process of capital market reform.At this stage,with the rapid development of information technology,the securities market is undergoing comprehensive and in-depth changes.New policies such as the registration mechanism of the Science and Technology Innovation Board,the in-depth reform of the New Third Board,and the intensified opening up will have an extremely significant impact on the business development of the securities sector,the innovation of financial supervision models,the improvement of financial criminal law legislation,and the changes in criminal policies.This chapter sorts out the relevant new criminal risks in detail,including new crime risks,cross-border crime risks,crossindustry crime risks,and financial technology risks.On the basis of sorting out the new points of criminal risk,the author further summarized the current situation and deficiencies of the current securities market regulation.The second chapter is the challenge of capital market reform to criminal legislation.The establishment of the concept of substantive securities and the expansion of its scope are the reality of the system reform and legislative breakthrough that can be expected in the latest revision of the securities law and in line with the international financial market legislation.From the perspective of historical perspective and future development research,this chapter explores to improve the connection between the concept of securities and the object of criminal law regulation,and uses the concept of substantive securities to define the crime of securities market.As for the securities crime which is a legal crime,the determination of the secondary illegality is closely related to the securities law and the concept of "securities".In the criminal legislation and judicial interpretation,we should use the new legal concept of "securities" when describing the relevant charges and crimes,determine the deterrent circle of judicial practice,and protect the rights and interests of financial consumers.The third chapter is the criminal regulation of foreign securities crimes.In the key window period of capital market reform,facing the complicated international situation,China needs to maximize the limited law enforcement and judicial resources.Therefore,the advanced ideas and practical experience of the United States are worth learning.This chapter sorts out the characteristics of foreign mature capital market supervision,including the relatively concentrated types of cases investigated,the proportion of illegal income recovery,the role of non property punishment and the orientation of making up for investors' losses,and draws lessons from them,such as paying attention to the foresight,balance and effectiveness of law enforcement,playing a good"combination of general prevention and diversified punishment,and being positive In order to improve the system design of China's securities market,we should improve the value concept of supervision,prevent and control cross market financial risks,adjust the design of securities market system,improve the internal logic of market governance,speed up the construction of infrastructure,and promote the reform of stock exchange company system.The fourth chapter is the reconstruction of the criminal policy of securities crimes.Based on the actual needs of society and the tightening of financial supervision,the cost of crime should be increased,and the prevention and resolution of systemic risks are regarded as an important task.Under the background of fighting the overall political situation of preventing and defusing financial risks,implementing the working requirements of the Finance Commission for "zero tolerance" of illegal and criminal acts in the capital market,and responding to the revision of the securities law and the promulgation of the criminal law amendment(11),how to grasp the "scale" of"incrimination" and take into account the "need" of "incrimination",so as to make the scope of the criminal law and the securities law consistent The purpose of market governance should be consistent and the size of securities crime circle should be determined reasonably.The fifth chapter is the perfection of criminal laws and regulations for securities crimes.The newly revised "Securities Law" stipulated in Chapter 3 of the prohibition of trading activities,Chapter 13 of the new regulations on the prohibition of employment system,Chapter 5 of the information disclosure system are all The most important thing closely related to the provisions of the Criminal Law.This chapter discusses the legislative perfection of securities crimes from the substantive law.One of the innovative highlights is the legislative perfection of breach of trust crimes.my country's criminal legislation currently stipulates various crimes against honesty and credibility with the violation of the socialist market economy order as the legal benefits of their infringements in different chapters,resulting in insufficient pertinence of the criminal law system and inconsistent criminal law theory.In the author's opinion,we should organically integrate the crimes of breach of trust that damage the interests of listed companies and the crime of breach of trust in the use of entrusted property,which are divided into two different chapters,and include them in the separately added chapter on breach of trust,so as to deal with the crime of breach of trust in the securities market in a unified manner.behavior.In addition,it is suggested that the crime of breach of trust in the capital market should be added to the provisions of the Criminal Law of our country,which will make the perpetrator violate the obligation of honesty and trustworthiness in the capital market,abuse his advantageous position such as information,and deal with securities,futures and other types of financial derivatives.The behavior of illegally controlling,influencing or unfair competition and seeking financial transaction benefits from the investment strategy of products or investors shall be regulated in a comprehensive manner,supplementing the existing crimes of breach of trust in the capital market.The sixth chapter is the response to the new securities crime.The newly revised"Securities Law" stipulates that when the issuance and trading of securities outside China damage the domestic market and investors,it needs to be subject to the jurisdiction of China's securities administrative law.Although the clause clearly gives China's securities law the right of extraterritorial jurisdiction,the standard is relatively vague.The standard of "disturbing the market order within the territory of the people's Republic of China" and "damaging the legitimate rights and interests of domestic investors" needs to be further clarified.At the same time,the exercise of extraterritorial jurisdiction also needs to be consistent with international practice,fully respect international experience and respect the exercise of other countries' jurisdiction.Therefore,the author believes that it is necessary to deeply study the international experience,and on the basis of improving the legislation of China's extraterritorial jurisdiction,strengthen the international cross-border law enforcement cooperation,and take the lead in the regulation of cross-border illegal acts in the specific field of capital market innovation.In addition,the legislation of "Securities Law" and "criminal law"should take into account the current trend of the combination of science and technology and finance,give valuable legal guidance to the securities market,and form the overall rationality and effective regulation of the securities market.Therefore,it is necessary to further improve the legislation according to the development of science and technology and the future trend,so as to provide legal guarantee for the formation of a rational securities market.The seven chapter is the construction of supporting mechanisms for investor protection.Although the penalties for securities violators have become more and more severe,whether it is administrative fines or criminal penalties,the amount has repeatedly hit new highs,but investors whose interests have really been damaged have not been effectively filled.Therefore,it is necessary to learn from foreign investor protectionoriented legislation and judicial concepts,improve my country's securities investor protection system,and explore the establishment of a securities penalty and confiscated"share" mechanism from two aspects:the advance payment system in the securities field and the rewarded reporting system.,And carry out outside explorations such as"public interest litigation" in the capital market field involving the participation of procuratorial agencies.