Research On The Legal Regulation Of American Modern Insider Dealing

The history of national development in America is relatively short,but it has the most developed capital securities market and mature securities regulatory mechanism in the world.The legal regulation of insider trading in the United States has a profound social background.From the beginning of the American War of Independence to the beginning of 20th century,there has been a great deal of investment at home and abroad due to the issuance of treasury bonds during the war.America's capital markets are growing rapidly.However,there are many securities fraud in the securities capital market,including insider trading.After the Great Depression in 1929,the demand for supervision of the securities capital market is increasing.In the political aspect,President Hoover adopted a laissez-faire economic policy,and failed to supervise the capital market.He was unable to save the national economy,which was still in the doldrums.After Roosevelt came to power,he implemented the New deal.Strengthening the government's supervision of the market;At the beginning of the 20th century,the state securities legislation was in full swing.On this basis,the federal level successively formulated the Securities Act and the Securities Exchange Act,which led to the beginning of the legal regulation of modern insider trading in the United States.The main aspects of the legal regulation of modern insider trading in the United States are the evolution of the imputation theory and the limitation of each theory and the changing scope of the subject of insider trading with the evolution of the imputation theory.American insider trading imputation theory includes equal access to information theory,fiduciary duty theory,information receiver theory,embezzlement information theory.The theory of equal access to information guarantees that the general investors have equal access to information,and anyone who has inside information has the obligation to "open or abstain from trading";The theory of trust obligation has changed the basis of imputation of insider trading.The existence of other legal relations such as trust relationship is the source of disclosure obligation.The theory of information receiver holds that the information receiver has the elements of disclosure of insider information which knows that the insider violates the fiduciary obligation and disclosures the insider information for the sake of private interests,so he bears the legal responsibility of insider trading.The theory of embezzlement information holds that any person who illegally misappropriates information by using insider information to establish insider trading is related to securities trading,and the disclosure obligation not only comes from the trust relationship of the target company or the general investor.Breach of the obligation to keep the information source confidential also constitutes fraud.With the development of judicial practice,the scope of application of the subject of insider trading has been extended from the original traditional insider to the presumed insider,the person who divulged and received the information,and the person who embezzled the information.Traditional insiders refer to the company's internal personnel,including directors of high and the actual controller of the partners,trustees and so on;Presumptive insiders refer to persons outside the company who have legal relations with the company and have access to the internal information of the company because of their business relationship;The person who leaks information refers to a person who does not disclose the company's insider information for personal interests violating the fiduciary duty.The information receiver refers to the person who gets information from the information leaked person.The person who misappropriates information refers to the person who illegally misappropriates company information and engages in securities trading.The characteristics of insider information include non-disclosure and materiality.In American judicial practice,non-publicity is the standard of substantial publicity,and materiality is a standard of substantial certainty in American judicial practice.As with the judicial determination of insider trading,the legal remedies for insider trading in the United States have been continuously improved since 1930s.The legal "remedy" of insider trading is divided into civil legal relief,administrative punishment and correction,and criminal identification and punishment.The civil legal relief mainly involves the development of the civil suitably subject and the establishment of the standard of the determination of the civil damages in the specific cases.In the aspect of administrative punishment and correction,it mainly analyzes the improvement of administrative "remedy" means of insider trading in the United States from several amendments of American securities law.In the aspect of criminal identification and punishment,the author analyzes the subjective intention of insider trading,the recognition standard of private interests and the gradual change of criminal punishment in combination with judicial precedents and the revision of statutory law.Throughout the United States from the emergence to maturity of the legal regulation of insider trading such a dynamic historical development process,we can see that the legal regulation of insider trading in the United States is the parallel development of statute law and case law.Statutory law and case law provide support for the development of the other side while they are developing;The development of American moderm insider trading legal system is from general prohibition clause to fine legal regulation,from laissez-faire to comprehensive prohibition to severe punishment.The legal regulation of modern insider trading in the United States began with the Securities Exchange Act of 1934 and the trace of regulating insider trading can also be found in the Securities Act of 1933.After a series of statutory legislation modification,perfection and the development of case law,the modern legal regulation of insider trading has become mature,and our economy is in a period of rapid development.There are still many problems in the legal supervision of insider trading.It is of great practical significance to comprehensively and systematically study the legal regulation of modern insider trading in the United States for the perfection of China's securities regulatory system.