Research On Burden Of Proof In Insider Trading Of Administrative Penalty

Our financial market is developing rapidly,meanwhile insider trading is rampant,it has become the key issue of financial regulation in China. Administrative penalty is one of the most principal means in the regulation methods. For reference to the successful experience of foreign countries, compared with civil and criminal sanctions, administrative penalty has a great efficiency. But in our country, in the face of frequent occurrences of insider trading, securities regulators have many problems in the cognizance of insider trading, one important reason is that insider trading is extremely difficult to prove, it is overburdened for securities regulatory authority to take all the burden of proof, and failure of proof leads to such a result:many insider traders are not punished, it infringes the rights and interests of small and medium-sized investors, causes great harm to our securities market and macroeconomic, therefore the distribution of burden of proof is a topic to be further researched.In2011,the supreme people’s court released a form about evidence issues in securities administrative penalty cases, for the first time it clearly established in the form of formal legal text that administrative relative persons should bear some burden of proof in insider trading cases in administrative penalties, but it did not have clear legal basis. In the practice of administrative penalties in insider trading, securities regulators want to assign some burden of proof to administrative relative persons, but because of the unclear legal basis, securities regulators can’t do what they want to, it is a dilemma. Under this background, this article analyzed legal provisions related to insider trading,burden of proof in administrative procedures and administrative penalty, drew lessons from foreign countries, tried to put forward some proposals to improve the situation.In chapter one, firstly we introduced three cases of insider trading in China and the United States which can reflect the differences between China and the United States in the distribution of burden of proof in insider trading, it raised the issue of burden of proof in administrative penalty in insider trading in our country. Secondly we analyzed the nature of burden of proof, the existence of burden of proof in administrative penalty in insider trading, illustrating the significance of our topic.The second chapter discussed the "legal" ground related to administrative penalty in insider trading. The provisions of component elements of insider trading and the burden of proof are not clear which requires us to look for the legal basis for our topic in a higher level.The third chapter probed into the distribution of burden of proof in administrative procedures. Although we don’t have a unified administrative procedure law in our country, the foreign countries have different legal provisions of burden of proof, scholars have different views in this issue, that administrative organizations should not bear all the burden of proof has become a consensus, and we have recognized that we should establish different distribution rules according to different types of administrative acts.Chapter four analyzed the burden of proof in administrative penalty procedures. According to our<Administrative penalty law>,the administrative organizations should bear the burden of proof, but in some special laws we have different provisions, comparing to the legislation and practice of the defendants bearing burden of proof in criminal procedures, we find that in certain types of cases in administrative penalty it is necessary to let the administrative relative persons bear some burden of proof.In the fifth chapter, through the discussion of legislation and practice related to burden of proof in insider trading in foreign countries, the legislative purposes of <Securities law>,the particularity of insider trading, low efficiency of administrative penalty in insider trading, the policy to crack down on insider trading, we put forward a proposal to improve the rule of distribution of burden of proof. People prescribed by the <securities law>should bear the burden of proof on "awareness". All related people should bear the burden of proof on "utilization". And we put forward a legislative idea to reduce the securities regulatory authority’s burden by reducing the standard of proof, let the one who has no burden of proof bear the responsibility to clear, in order to reduce the difficulty in the proof of insider trading, to suppress insider trading, protect the interests of small and medium-sized investors, maintain fairness and justice of the securities market.