Using Nonpublic Information Trading Research On Several Issues

The development of capital market plays an important role in promoting the rapid development of economy and society. Along with the booming of Chinese capital market, rule-breaking trading taking advantage of information emerges in an endless stream, despite repeated prohibitions. The introduction of the crime of trading on undisclosed information is aimed at punishing rule-breaking trading by employees of financial institutions and staff of regulatory agency or relevant industry associations using their information superiority in the relevant securities and futures. However, very few persons convicted guilty since such behavior being defined as criminal by the Seventh Amendment of Criminal Law, at the same time, rule-breaking trading happens frequently. The legal effect and social effect of the crime have not yet been fully embodied. In view of this, it is very necessary to analyze the theoretical connotations and practice boundaries of the elements of the crime of trading on undisclosed information and discuss the problems in the legislative and the judicial process deeply, in order that providing a reference to judicial application and making recommendations to legislation improvement, which are the theme of this paper.This paper consists of four chapters:The first chapter provides an overview of the crime of trading on undisclosed information. In the section of the legislative background of the crime, the author clarified the object of regulation of the crime of trading on undisclosed information based on the comparative analysis of "Rat Trading", then, made a comparative analysis of legislative cases of some countries and regions with mature capital markets, including the United States, European Union, Japan, and Germany, thus obtains a deeper understanding on the legal status and regulatory range of the crime of trading on undisclosed information. Finally, on the basis of empirical research on the relevant cases, the author points out major issue regarding the crime, and lay the foundation for the study of the following chapters.Chapter two puts focus on some elements of the crime of trading on undisclosed information. Since a lot of consensus has been made in academia, only controversial elements are involved in this chapter. First, the author defines the connotation, characteristics, scope and source of undisclosed information, which are preconditions of the judicial application of the crime. The author considers that the subjective aspect of the crime is direct intent and holding the purpose of making profit illegally, whereas whether the suspect obtains the interest has no means to the composition of this crime. On the objective side, the author considers that leaking undisclosed information does not constitute the crime of trading on undisclosed information, while may commit other crimes.Chapter three involves the deficiencies of the legislation concerning the crime of trading on undisclosed information. The legal provision sets requirement of "violation of the regulation", whereas relevant financial laws and regulations are still flawed. Furthermore, the article of law regards gravity of the circumstances as constitutive requirements; nonetheless the standards setting by judicial interpretation are too low compared to the actual situation of capital market, which injurious to the authority of criminal law and deterrent force of the crime. On the basis of the study, the author raises some legislative suggestions.Chapter four defines and discusses several problems in judicial practices jointing with current situation. The author holds that there is no justification to apply inverted evidential burden, the ways to solve the difficulties of proof are:improving system construction, develop encouraging measures, widening source of evidences and enhancing forensics capacity of investigative organs. According to the present situation of too minor measurement of penalty, the author demonstrates the reasons for increasing the punishment of the crime from the perspectives of the basic principles of criminal law, the purpose of punishment and its implementation and comparative law.