Lack On The Independence Of Criminal Regulation Of Insider Trading And Reflection

Insider trading is the most common type of illegal crime in the securities and futures markets.The main regulatory method in China is administrative punishment,and criminal punishment is relatively rare.In the criminal proceedings of insider trading cases,because the criminal law authorizes the important elements of “inside information” and “informed personnel” to the legal and administrative regulations,the judge can only refer to administrative legal norms in the trial of criminal cases.The initiation of criminal cases often needs to be transferred through the administrative supervision department,and the securities crime investigation department have to rely on the investigation conclusions of the regulatory authorities to complete the investigation.The administrative approval opinions issued by the securities regulatory authorities are various in form and rich in content.Even if they are often refuted by the defense on the grounds that they have no evidence,they can still occupy a place in the conviction of the judgment.The lack of independence of criminal regulation of insider trading has led to a strong position in administrative criminal opinions in criminal cases involving insider trading.The existing criminal judgments have almost adopted the conclusion of administrative recognition opinions without exception.The arbitrary application of the provisions of the Securities Law on “inside information” and “informed personnel” in the administrative determination may imply the arbitrariness of administrative law enforcement to the criminal lawprovisions of insider trading.Under the influence of “zero tolerance,all-round,no dead ends” in the administrative law enforcement of securities,the criminal punishment of insider trading has become more severe.Therefore,it is necessary to adhere to the standpoint of criminal independence,follow the clear requirements of the principle of legality of a crime,and make a realistic interpretation of the criminal law and moderation.From the criminal concept of the insider trading of the dual interest concept,the controversial issue in practice cannot be completely determined.The case was finalized in accordance with the opinion of the CSRC.The first chapter explains the current situation of criminal regulation of insider trading.In terms of legislative provisions,the criminal law provisions of insider trading are subordinate to administrative legal norms.In the criminal justice process,the initiation of criminal justice procedures for insider trading relies on administrative enforcement activities.In terms of criminal judgment,the courts at all levels basically use the administrative confirmation letter issued by the CSRC as the conviction basis for criminal cases of insider trading.Therefore,the criminal regulation of insider trading is still not independent,and it is difficult to exert independent regulatory effects.The second chapter is the main part of the article.It analyzes the main elements of insider trading crime from four aspects: inside information,sensitive insider information,insider trading subject and crime blocking.In practice,the scope of insider information is expanding,the time span of insider information sensitive period is gradually prolonging,the subject of insider trading can cover more and more objects,and the defenses proposed by actors and defenders have never been adopted by the court.This chapter combines the criminal judgment and administrative punishment cases of insider trading,and empirically analyzes the characteristics of insider information,the starting point of the sensitive period of inside information,the informed personnel and the scope of illegally obtaining inside information personnel,and discusses the “open information”.Whether the specific details that have not been disclosed yet,whether the “information of information” is inside information,when itis possible to determine in advance the “time when the inside information is formed”,whether the local party and government organs are insiders,and whether the person who passively obtains inside information belongs to the insider trading entity Whether the perpetrator and his defender can defend a series of controversial issues from the perspective of insider information,insider information sensitive period,and insider trading subject.The third chapter reshapes the concept of criminal regulation of insider trading.The criminal law of insider trading is subject to the administrative legal norms that are overridden by the provisions of the law,which may have an impact on the clarity of the principle of legality.The initiation of the criminal justice process relied too much on administrative law enforcement activities.This phenomenon does not reflect the“criminal law and moderation” but a judicial inaction.Rethinking the lack of independence of criminal regulation of insider trading,it is imperative to respond to the explicit requirements of the principle of legality of the crime,to make a realistic interpretation of the criminal law,and to form an independent regulation of insider trading crimes based on the criminal concept of insider trading of the dual interest concept.system.The fourth chapter reconstructs the main elements of insider trading crimes.First,the "specific details that have not been disclosed in the public information" should be excluded from the scope of inside information.For uncertain information,it should be combined with “importance” to judge whether it is inside information;second,the formation of inside information is determined in advance.The circumstances of time should be limited to motions,decisions,planning or executives in the case that can affect the formation of inside information.Only when the matters involved in insider information have entered the stage of substantive operation and have great realization possibilities,can we believe that insider information has been formed;third,although the staff of local party and government organs cannot be stipulated in Article 74 of the Securities Law.The legal basis can be found in the middle,but it should be recognized as insider information insiders because of the position of theadministrative organ and the performance of work duties,and the passive and unintentional access to inside information should not be recognized as the insider trading subject;finally,the crime of insider trading The reason for the obstruction should be to allow the perpetrator and his defender to defend from the inside information,the sensitive period of inside information,the subject of insider trading,and the evidentiary effect of the administrative confirmation letter.