The Standards For The Identification Of Inside Information In Criminal Law

The crime of insider trading is the earliest and most current security crime.In view of the definition of insider trading,national legislation and theory have a tendency to change from the identity of the actor to the inside information,which means the conviction of inside information is the core of the determination of insider trading.However,in terms of the characteristics of the inside information,the provisions of national legislation and theory,domestic criminal law and securities law are different.In addition,China still has the problem that the securities market starts late and develops unbalance and the judicial authority relies excessively on the securities regulatory agency in the conviction of insider trading.Therefore,it is necessary to redefine the characteristics of inside information in criminal law.This paper is divided into five chapters.The chapters are as follows:Chapter one points out the necessity of identifying the characteristics of inside information in criminal law,which is the key to the regulation of insider trading.Then there's a brief analysis on inside information legislation in our country,mainly including the conflicts between criminal judicial interpretation and the securities laws,that laws are ambiguous and the excessive authority in the administrative organ about the cognizance of inside information.In the end,the factors about the cognizance of inside information should be taken into consideration.Chapter two discusses the content of "confidential" which is one of the characteristics of inside information.By comparing the "real standard" and "formalstandard" theory of "confidential",combining the development status of China's securities market(mainly including the transaction participant quality and transaction mode)and defects in securities and futures laws and regulations,the conclusion is drawn that the "confidential" should be based on "formal standards" in most consequence and "substantial standards" can be the reference.Chapter three elaborates the content of "importance" as one of the characteristics of inside information.By comparing and analyzing the "subjective standard","strict objective criterion" and "relative objective criterion",and combined with the criminal policy of domestic leniency,the identification of causality in criminal law,it is concluded that "importance" should be based on "relative objective criteria" and the judge should identify causality in the actor's perspective.Besides,"precise" should,of course,be included.And the establishment of the standard in the criminal procedure law can reduce the prosecution's liability for the "accuracy" to increase the possibility of punishment.Chapter four elaborates the content category of "authenticity" and "relevance" as one of its characteristics.Although it is necessary to distinguish between real information and false information based on the considerations of criminal harmfulness,the "material" of inside information should be interpreted as relatively real combined with China's major information disclosure system.Based on the integrity and unity of the criminal law,the requirement of the modesty of criminal law and the consideration of the "three principles" of the securities market,inside information should have a "relevance" category and should first exclude "unpublished information",and limited to information related to financial or legal professional and directly related to a company or a securities,but the prosecution can not rule out evidence to prove that some information can indirectly exclusive influence on a securityChapter five discusses the standard of the inside information in the procedural law.It mainly includes the analysis of the evidence ability of the "confirmation letter",the criticism of the excessive reliance on the oral evidence in the judicial practice,and the analysis of the order and the identification standard of the crime of insider trading.