Research On Controversial Problems Of Insider Trading Crime

With the vigorous development of China’s securities market, securities investment has gradually become an important way of our national finance and investment. However, it causes all kinds of illegal and criminal acts, which seriously undermines “the fairness, justice, open” principle of market and hurts the lawful rights and benefits of most investors. Among all kinds of illegal acts, the insider trading behavior has showed a rising trend year by year. The prevention and control situation is not optimistic. We need effective and targeted laws and regulations to control these acts.This paper combines related theories and cases about insider trading securities in The U.S.A and discusses different opinions and views of the scholars through the comparative study. It also proposes corresponding modifies and improvement suggestions to solve the problems about subject of the crime of insider trading, insider information and the objective behavior of crime of insider trading which involved in The Criminal Law and interpretation. The main body of this thesis was divided into three chapters. The main body of this thesis was divided into three chapters.The first chapter mainly analyzes and solves the problems about the subject of the crime of insider trading in our existing law and proposes the corresponding changes. In the Criminal Law and the interpretation, insiders and people who get information through illegal access have been considered the two subjects of the crime of insider trading. Because of the different standards, it will produce the incomplete situation easily. The cause of this situation is our country judicial organ and scholars are based on the text of criminal law for analysis and interpretation of the insider trading main body, the lack of insider trading main body deep research in the theory of imputation. Imputation theory of insider trading subject is divided into on the basis of the owes a duty of loyalty to the company and shareholders of the trust relationship theory and "three" principle in order to protect the securities market on the basis of information equality theory. Through the contrastive analysis of the two theories, Trust relationship theory has many defects, Information equality theory from the whole market, emphasis on all the market main body has the right to equal access to information, focusing on protecting the rights and interests of each investor. Information equality theory than trust relationship theory has incomparable advantages, Therefore information equality theory should be established in our country as the main body of insider trading imputation theory. Insider trading main body refers to secure information by any way and knows or should know the information of inside information.The second chapter discusses insider information and insider information form time standards related issues.The first section in this chapter points out that standard of insider information including insider information of openness, significant and tangibility. Open to inside information should be taken to form public combination of substantial public standards; Significant shall take cognizance of insider information rational investors standards. As for the nature of exact, the information should be real and specific. Authenticity is the primary requirements of insider information. The information must be true. Insider information to specific requires information can’t be vague.The second section of this chapter discusses inside information form the standard of time. In judicial practice, because the hysteresis and confusion during period of determination, establishing the cognizance standard form of insider information becomes particularly important. When we identify in the form of insider information, we should follow the appropriate basic principles identified in advance, we should understand that the price fluctuations caused by public information can only be as insider information significance as an important basis for process rather than a necessary condition, we should know the formation of the insider information must be determined under the condition of information. However, we should discuss the formation of insider information with case discussion. For the core events of the participants, the time of determination should be advanced. For other people who knows the inside information lawfully, the time can be confirmed when two sides reach an agreement. For people outside of the company who know the inside information, we don’t need to discuss the formation of the insider information problem.The third chapter mainly analyzes and solves the insider trading objective behavior problems in the relevant laws and regulations. According to the Interim procedures and securities law, it will recommend others to engage in securities trading shall be illegal behavior, but the Criminal law does not decriminalize it, and takes advantage of the statement of expressing or implies for insider trading. For differences in these two kinds of expression, because the extension of advice others to engage in securities trading behavior must be more widely than expressing or imply behavior. If the advice behavior can constitute a crime, it will be regulated. The component elements of insider trading are discussed from the Angle of the ought to be, so it is easy to expand our scope of to crack down on insider trading, this should give the offender must be evil right of defense. About if “using inside information" is established condition aspect of the crime of insider trading, "Using inside information" is the insider trading crimes should be embodied in the law in this paper. It is one of the standards to distinguish between crime and not crime. It should be one of the component elements of insider trading. For proof of "using inside information" problem, from trade time, trade size and transaction records and so on three aspects as the method of using criminal presumption.