An Analysis Of Cases Concerning Li And Others’ Trading By Using Undisclosed Information

With the continuous development of securities and futures market,"Rat warehouse" has become a prominent problem in the securities and futures market.The establishment of the crime of tranding on Non-public information provides a clear legal basis to timely constrict and clean the "rat warehouse".However,in the course of judicial practice,there are still many problems in the conviction and sentencing of the crime of undisclosed information transaction.Through studying the three cases of Xu,Ma,Luo Mouping,we have found that different courts have a different standard in probation application.On the one hand,the probation system is based on the theory of educational punishment,which conforms to the principle of special prevention.On the other hand,it follows the view of retribution which should be subject to the limitation of responsibility.The general rules of criminal law of China clearly define the probation application’s prison term and the substantive elements,such as "the crime is light","there is repentance”,"no danger of further crime","no significant adverse effect on the community".Every condition has focused,not partial waste.In the Ma Mou,Xu Mou,Luo Mouping’s case of probation applicable,the people’s courts are able to have a better grasp in some substantive elements,such as "have the performance of repentance","no risk of further crimes","no serious adverse impact on the community".But in the terms of the sentence,courts abused leniency punishment circumstances,and ignored the higher incidence of the situation.When the court judge the substantive element of "crime situation is lighter",the court didn’t take consideration on some important problem,such as criminals social harm increased."Crime plot "has exceeded the" light "can contained.These prombles led to the application of probation contrary to the principle of responsibility,and punishment is not compare to culpability,thus the public is difficult to accept the outcome of the situation.In order to avoid the above situation,the court should pay attention to the following aspects when deal with the probation of similar cases in the future.Firstly,the problem of abuse of the multi-function sentencing should be conquered.When we choose function,we should combined with the severity of the crime,and the circumstances of the plot itself and the order of the law reasonable.Secondly,according to the requirements of responsibility,for these people that benchmark punishment is higher,but by mitigating punishment reach the conditions of criminals in line,which should be strictly applicable to probation.Finally,we must strictly grasp the conditions of probation,especially "the crime situation is lighter"conditions,which is easy to beignored in judicial practice.Investigating this condition can not be divorced from the facts of the crime and the consequences of harm.When existing aggravat circumstances or legal punishment promote situations,It should not be determined to commit a crime lighter.In addition,in order to further solve the problem the crime of tranding on Non-public information,we can consider increasing crime standard sappropriatly and set a reasonable of sentencing range.