Sino-America Comparison On The Crime Of Securities Insider Trading

As an emerging market appearing in the early 1990s, the Chinese securities market has experienced tremendous improvements in recent years. However, at the same time, related unlawful actions have been emerging and exerting an increasing negative influence on the securities market, among which insider trading seriously destroyed the ordinary market orders and infringed investors'rights and interests, as a cancer to the market. Thus, it is of great importance to supervise the securities market, and to control the securities crimes including insider trading. As a new type of crime, insider trading has drawn more and more attentions by writers and practitioner. Due to lack of practical experience and defects of criminal legislation, there are many disputes in most aspects of the crime, which deeply interests the author.In the past few years Chinese scholars have been very active in the study of theories of insider trading, taking different approaches from various angles. However, only a few scholars have adopted the comparative method, and most of them didn't concentrate on a certain country, which resulted that the comparisons covered various countries but lacked elaborations. Comparing regulations of the crime of insider trading between China and American is extremely rare. Since the U.S., which adopts the strictest and soundest system of controlling insider trading, has great influences on other countries and areas in the world, the author considers that taking advantage of its system is of great significance to control the crime in our country. In addition, the amendments in the new Securities Law published in 2005 has also provided new perspectives and spaces for the study. Considering lack of researches in this aspect, the author does hope he could improve the research from the new perspective.The dissertation is focused on making a relatively complete research by a comparative approach. Referring to the most possible latest laws and regulations, and the most typical cases, the author concentrates on accurately disclose the similarities and differences, the advantages and disadvantages of the two criminal legal systems, based on the legislative articles and techniques. By making a complete comparison between Chinese and American regulations, combined with the amendment of insider trading of securities law in 2005, he also deeply analyzed the constitution of the crime and the flaws of the current criminal responsibility system, and finally presents his own opinions and suggestions on the Chinese criminal regulating of securities insider trading.The dissertation consists of six chapters, as well as the introduction and the epilogue. Chapter I andⅡare mainly about definitions of securities, insider trading and securities insider trading crimes and review the development course of insider trading system from a historical perspective, laying a foundation for the following comparison. Based on comparing advantages and disadvantages of Chinese and American criminal legislations, the author has analyzed the drawbacks of the Chinese Criminal Code in controlling securities insider trading, and concluded the possible solutions by adopting affiliated criminal laws following the US to improve the current legislative mode.ChapterⅢ,ⅣandⅤfocus on making a fairly comprehensive research by comparison on the crime of securities insider trades in China and America from subject, objective aspects and subjective aspects of crime.In ChapterⅢthe author points out that how to identify insiders in America is too complicated to apply in practice. The substantial standard in China should be whether the subject has been in control of inside information. Since the definition of insiders in China has too many problems in terms of logics and subject scope, we should properly narrow the coverage of the crime subject, based on a wide explanation of the term"the person who illegally get access to inside information".Chapter IV is a discussion on the objective aspects of the crime by analyzing two aspects: inside information and inside trading acts. As to inside information, the author concludes that the undisclosure standard and the importance standard of inside information exists disadvantages and flaws, and we can refer to the American substantial disclosure standard and insider information judgment principles. As to inside trading acts, the author makes further analysis to three acts: taking advantage, disclosing and suggesting. He concludes that inside trading acts should"take advantage"of something, the crime of"disclosing"inside information should be deleted and three acts should be integrated to be a single crime– insider trading crime.Chapter V is an analysis of the subjective aspects of the crime. In this section the author points out"on purpose"should be the necessary factor to constitute insider trading crime. Regarding how to decide whether the subject is on purpose or not, the presumed fault principle should be adopted.Chapter VI is the comparison in three aspects of the crime, judicial determination, inflicting punishment and sentence, between China and America, based on which the reference of American related legal system would be necessary to improve the Chinese criminal responsibility system. Suggestions on how to attain variety and reasonability while inflicting punishment and sentence is the main content of this section. According to the author, the"seriousness"standard and fine punishment should be perfected, and different punishments should be given to different subject.