The Discussion Of The Action Of The Crime Of Manipulation Of The Securities And Futures Markets

Coming of the economic globalization era not only brings opportunities for thedevelopment of the global capital market, but also creates a breeding ground for newtype economic crime. The crime of manipulation of the securities and futures marketsas one kind of Securities Crimes always cannot be detected easily, meanwhile, theculture of ‘Banker’ since the birth of security market makes it invisible killer forsecurity market. Unfortunately, across the research status, the cognizance of themanipulation has large differences, which creates difficulties on the cognizance ofmanipulation of the securities and futures markets. The author believes that coreproblem in manipulation of market is the cognizance of the manipulation. Only theaction infringing legal interest can be considered as a crime, so only the manipulationinfringes legal interest can be considered as the manipulation action in the crime ofmanipulation of the securities and futures markets. However, after the protected legalinterest was definite in legislating, the legal interest infringed by manipulation couldbe explicit, this main part of this paper, which is the cognizance of the manipulation,starts itself just based on this logical beginning. In style, this paper is divided intothree sections as follows:First, research status of manipulation. From the research status of manipulationdomestic and overseas, definition of manipulation by Chinese scholars aresummarized, at the same time the interpretation of the manipulation in the case ofAmerica and Japan are sketched out. Based on the research above, the greater disputein the cognizance of the manipulation is obvious, so the research in the cognizance ofthe manipulation is necessary and significant.Secondly, the premise for the cognizance of the manipulation. The theory of legalinterest violation is taken in discussing the nature of the crime, since a certain actionwhich is identified as the manipulation in the crime of manipulation of the securities and futures markets, must be infringing legal interest. So, after the protected legalinterest was definite in legislating, the legal interest infringed by manipulation couldbe explicit. Therefore, the Legal Principle of Crime and Punishment and the definitelegal interest to be protected are both the premise of the cognizance. Two Substantialrequirements for the implementation of the Legal Principle of Crime and Punishmentare definiteness and appropriateness. In the crime of manipulation of the securitiesand futures markets, definiteness is mainly embodied in the first three clauses, and thedefinition of the ‘other methods’ in the fourth clause, needs the coordination of bothdefiniteness and appropriateness.The third part is the cognizance of the manipulation, which is the main part ofthis paper. Further discussion on the cognizance of manipulation based on the twoparts above is expounded. The first three clauses are separately discussed here. InClause1, the author defines advantages of capital, Shareholding advantage,Continuous and Combined trade, especially in ‘information advantages’, falseinformation (including but not limited to inside information)is eliminated, meanwhile‘deal’ in Clause1should be actual deal not a ‘declare’. Combining Cases about thearranged time, arranged quantity and arranged price in ‘relative commission’ inClause2are discussed expanded. For Clause3, integrating the case of ‘Sino-Kuwaitientrepreneurs’, the author define ‘actual control of one’s own side, compared with‘all’.‘Other methods’ in Clause4are explained here on the basis of the second part ofthis paper, Other methods here should include wash trade, beating the gun and shortsale, but stabilization, demagoguery, fake information, specific price, specific value,and transaction in specific periods are neither included in other methods’.