The Criminal Regulation Of New Market Manipulation Behavior

With the development of internet technology,in the securities and futures market,traditional market manipulation behaviors are gradually being replaced by new market manipulation behaviors.The harm of new market manipulation behaviors is no less than the traditional market manipulation behaviors.However,through data statistics on recent years,it can be found that while the number of administrative punishment cases about market manipulation continues to rise and new market manipulation behaviors continue to emerge,the number of criminal cases about market manipulation is very few.The new market manipulation behaviors,mainly with false claims,scalping,and tail-end transaction,can't be covered by the types of behaviors specified in Article 182 of the Criminal Law.So how to regulate them is an urgent problem to be solved.Based on this,the thesis starts from the current situation of the administrative and criminal penalties of market manipulation behaviors.Then the thesis demonstrates the regulatory path of new market manipulation crime and explores the nature of market manipulation crime.Then,the thesis clarifies the subjective and objective conviction standards of market manipulation crime,so as to incorporate the new market manipulation behaviors into the scope of criminal law.The thesis mainly consists of the following four parts:The first part mainly expounds the current situation of the regulation of China's new market manipulation behaviors and the judicial dilemma revealed.On the basisof sorting out the current laws and regulations on market manipulation behavior,the current situation of administrative and criminal regulation of market manipulation behaviors in China is inspected from the aspects of quantity and means according to the cases published.It can be found that the new market manipulation behavior has increased greatly.However,the number of related criminal cases is extremely small.The emergence of new market manipulation behavior reveals three major judicial dilemmas,that is,the lag of legislation,the contradiction of concept and the difficulty of connection about administrative and criminal law.The lag of legislation makes the narrow definition of the essence of manipulation in practice cannot cover the manipulation of new market.The modesty of criminal law requires the criminal law to adhere to the status of the security law,which leads to the difficulty in timely implementation to the new market manipulation behaviors in the case that the predecessor law doesn't stipulate clearly.The second part is mainly to propose a regulatory path for new market manipulation crimes.After examining the regulation of new market manipulation behaviors in foreign countries,it can be found that the best choice to regulate the manipulate crime in China is interpreting the miscellaneous provision restrictedly and exploring the nature of China's market manipulation crime.Comprehending from the object and purpose of normative protection,the object of normative protection is the investor's capital allocation interest,and the purpose of normative protection is to prohibit the abuse of market superiority position and mislead investors to capital allocation.So,the essence of manipulating crime is to abuse the dominant position to mislead the investor's capital allocation and thus damage the investor's capital allocation interests.The third part mainly discusses the specific identification of new market manipulation behaviors in combination in practice.As the new market manipulation behavior is elusive,it is necessary to clarify the subjective and objective criteria of market manipulation crime.As a concrete dangerous criminal,market manipulation crime doesn't require actual misleading of investor capital allocation,but the actual benefit should be used as a limiting condition.Obtaining illegitimate interests is themotive of the act and is not subjective.When determining the information manipulation,attention should be paid to the definition of information,and the actor is not required to have a specific identity.The technological manipulation exists mainly in the way of false claims in China,and the determination of false claims mainly lies in the judgment of “not for the purpose of transaction”.The fourth part mainly discusses the specific application of the miscellaneous provision in market manipulation crime.The controversy over the “double miscellaneous” clause actually involves an understanding of the modestly restraining spirit of criminal law,which emphasizes the prudence of intervention about criminal law.Judging from the current situation of legislation and crimes in China's securities and futures market manipulation,it is difficult to implement the modestly restraining spirit at the legislative layer.,modestly restraining spirit should be implemented by reasonable intervention in judicature layer.For the new market manipulation behaviors that are included in the scope of the miscellaneous provision,the specific conviction and sentencing standards should be clarified in the form of judicial interpretation as soon as possible.