Comparative Study Of Insider Trading Crime In China And America

The Insider Trading crime is always the serious matter of common occurrence in Chinese and foreign stock and commodity futures markets. Each country all does their best to formulate rules and laws to manage it. Looking all around the world, the US's stock and commodity futures market is now the most developed in the world. However, our country's stock and commodity futures markets start late no more than 20 years. The legislations and theories about stock and commodity futures markets are at the explorative stage. In the aspect of fighting against Insider Trading crime, we need to improve this state. In view of this, this article makes a comparative study on the aspect of Insider Trading crime of stock and commodity futures markets in China and America. By this way, we hope to perfect the legislation of Chinese Insider Trading crime. This article is divided into four parts:The first part: Preface. This part mainly discusses the general theories, surveys of American and Chinese legislations on the aspect of Insider Trading crime. As far as the general theories about Insider Trading crime are concerned, this article proposes its own concept of Insider Trading crime after comparing various viewpoints, and launches the elaboration on the basis of these theories. As far as legislation survey of American Insider Trading crime is concerned, this article believes that American stock and commodity futures markets are not formed the perfect system and countermeasures from the beginning in stead of undergoing a process from the imperfect stage to the perfect stage. Says it specially, legislation of American Insider Trading experienced a series of case-law enrichments and the gradual adjustments to its perfect. As far as legislation survey of Chinese Insider Trading crime is concerned, our country's prohibition to the Insider Trading crime standard is established with the stock market at the same pace, that is, the decision-making body has realized the importance of supervision and management from the very beginning carried on the stock and commodity futures markets experiment and the improper Insider Trading crime is also included in this scope. At the same time, beginning late also has the corresponding advantages after its development. Our country can directly profit from the successful experience of the developed countries. In fact, in the aspect of prohibition legislation of the Insider Trading crime, our country has also referred some systems of many other countries in the world including the United States.The second part: comparison of Insider Trading crime between China and US. In this part, this article carries on the comparative study from the bellowing five main aspects. Firstly, in the aspect of the Inside information recognition, China and US have some similarities to some extent. At the same time, our country can't make a decision in some matters because of lacking the necessary historical accumulations. Especially, we should intake the American concepts of"reasonable investor"and"effective openness". Secondly, Chinese and American limitation about the question of the main body of the Insider Trading are extremely broad. Regardless of the natural person and the legal people all may become the main body of the Insider Trading crime, this scope may be even broader in China. Thirdly, both China and US carry the same responsibility theory about the limitation to the Insider Trading crime behavior. Fourthly, in the aspect of Insider Trading subjective mistake, both China and US request the actor on subjectively to have intentional behavior when they limit the Insider Trading behavior and the actor's negligence doesn't offend the law. In American laws, the limitation to"intention"is broader. In fact, this limitation also includes some"significant negligence". However, our country has a stricter limitation about this. Fifthly, in the aspect of comparative study about criminal responsibility, the suitable punishment about the Insider Trading crime of the stock markets in our country's criminal law (including individual and unit) is restricted to three measures---fine, criminal detention, and imprison. Fine and imprison are two main forms in American criminal law. Besides, we can deprive the working qualifications of the criminal person in the practice.The third part: comparison of futures Insider Trading crime between China and US. This part mainly discusses the surveys of futures Insider Trading crime in China and US. In the aspect of Insider Trading of American futures, this article believes that the theory and practice of it are not developed as well as the American negotiable securities which have a universally accepted and relative complete constitution. Generally speaking, constitution of the futures Insider Trading crime must be conformed to certain condition, mainly in the aspect of body and behavior. In the aspect of inside transaction crime of Chinese futures, this article thinks our country has no stipulation about the futures crime in our criminal law. Afterwards several changes of the futures and securities crimes are both stipulated through the criminal amendments including the crime of futures Insider Trading crime. These stipulations result in the great similarities in the futures and stock crimes in the crime constitution and criminal responsibility. In fact, the futures market is different with the stock markets. The Insider Trading crime and the securities Insider Trading crime also have great differences.The fourth part: reference and perfection. This part mainly discusses the punishment from two aspects, the transaction in short supply and the perfection of our country's criminal responsibility. According to American stipulation, this article believes that the behavior of the transaction in short supply should be considered a crime and integrated it in the Criminal Law"the Insider Trading, reveling the Insider Trading information". Its objective aspect and the main body may defer to our country's stipulation of "Securities law", and the subjective aspect should be direct and intentional. However, violation of the objective aspect should be punished as same as the stipulation to the crime of stock Insider Trading. In the other words, our country's relative laws which is a complex object has the right to maintain the normal order of stock markets and to protect the investor's legitimate rights and interests. At the same time, the scope of the punishment about the transaction in short supply may use the stipulation to the crime of stock Insider Trading of present Criminal Law as a reference and sentence the criminals. As far as the perfection of our country's criminal responsibility is concerned, we believe that the Insider Trading crime should be added the stipulation as a punishment to prohibit the working qualification. At the same time, because of the imperfection of the fine and imprison legislation, so we need to improve this to be perfect.