Research On Several Knotty Problems Of The Crime Of Insider Trading And Leaking Insider Information

Since the formal establishment of the Shanghai Stock Exchange in 1990,the securities market has played an important role in the economic system reform,corporate financing and capital allocation,and has played a very significant role in the financial market system and the development of the national economy.Although the securities market of our country is in the ascendant,the legal construction is not yet sound,the regulatory mechanism needs to be improved,and illegal and criminal acts such as insider trading and manipulation of the securities market continue despite repeated prohibitions,seriously affecting the stable,healthy and orderly development of the securities market.In order to effectively punish criminals,effectively crack down on and prevent insider trading,divulgence of insider information and other illegal and criminal acts,and maintain the normal trading order of the securities market,the State has successively promulgated the Interim Administrative Measures for Securities Companies,the Interim Administrative Regulations on Stock Issuance and trading,the Securities Law,the Guidelines for the determination of insider trading in the Securities Market(hereinafter referred to as the"Guidelines for determination")and other laws and regulations,The Criminal Law adds the crime of insider trading and leaking insider information,and the following Interpretation on Several issues concerning the Specific Application of the Law in Handling Criminal Cases of insider trading and leaking insider information(the"Interpretation")also makes more detailed provisions on this crime,However,insider trading and divulgement of insider information in the securities market are characterized by high incidence,strong concealment and low efficiency in investigation and punishment,and there are still many controversies over some difficult issues in the theoretical and practical circles.This paper systematically analyzes the disputes and problems existing in the constitutive requirements of the crime of insider trading and leaking insider information in our country,and makes a study and discussion based on the theoretical viewpoints and judicial precedents of the United States,the European Union and other countries and regions.The main body of this Document is divided into four chapters:Chapter One:Overview of the crime of insider trading and disclosure of insider information.Firstly,it expounds the concept of the crime of insider trading and leaking insider information,explains the harm of insider trading and leaking insider information to market participants and market order,and analyzes the basic elements of the crime.This paper comprehensively expounds the difficult problems of the crime of insider trading and leaking insider information in theory and practice,including the definition of insider information,the grasp of using insider information,the regulation of "leaking the secret again",the understanding and application of express and implied acts,and the existing problems in the determination of the subject of this crime.Chapter Two:Identification of insider information,insider information must be confirmed in the determination of insider trading,and the determination of insider information must rely on the characteristics of the insider information.The identification of the importance of insider information is more suitable for the development of the securities market at the current stage of our country than it affects the price standards of the securities market.As for the standards for the disclosure of insider information,our country lacks the basis for the application of the standards for substantial disclosure.From the perspective of cheap practical operation and application,the standards for formal disclosure shall be insisted on.The judgment on the relevance and accuracy of insider information is closely related to its importance and does not have independent judgment value,and need not be considered as an independent factor.Chapter Three:determination of objective acts of the crime of insider trading or leaking insider information.This Chapter is devoted to solving the difficulties and focal points in the determination of the following objective acts:Constituting the crime of insider trading requires the actor to use insider information as the element and a combination of the presumption of error and inversion of burden of proof.The second divulgence of secrets shall be subject to the provisions of the Criminal Law.However,it is unnecessary to prosecute the divulgence at all levels.Both explicit and implicit acts are part of the act of suggestion,but the act of suggestion includes both explicit and implicit acts as well as simple suggestions.The actor who explicitly and implicitly indicates others to trade securities and divulges insider information at the same time should be absorbed by the crime of insider trading and divulgement of insider information.Chapter Four:determination of the subject of the crime of insider trading or leaking insider information.The subjects of insider trading include "persons in the know of insider information" and "persons who i llegally obtain insider information".However,there is uncertainty in the scope of both.Our country mainly uses the American fiduciary relation theory for reference to identify the subject of insider trading,but gradually difficult to adapt to the development of our practice.China should learn from the basic market theory adopted by the European Union to enlarge the scope of insider trading subjects so as to solve the problem of narrow insider trading subjects in practice.