The Criminal Regulation Of The Crime Of Trading On Nonpublic Information

The “Securities Law of the People's Republic of China” finally came into effect on July 1,1999,opening the era of the rule of law in the development of China's capital market.After the development of these years,China's capital market has made a qualitative leap from its size and structure to its position in the financial system and its contribution to the substantial economy,but the supervision in law is weak,Part of the performance is the use of non-public information trading behavior has occurred frequently in spite of the prohibited rules.The various information in the market is the foundation for investors to make investment decisions.The law cannot guarantee that each investor has the same ability to analyze and judge while facing the same information in the transaction,and cannot guarantee that each investor gets the same profit.However,the law should at least ensure that all investors enjoy equal opportunities to access the information.This requires building an institutional prevention to control the use of nonpublic information in transactions and clear the defendant's administrative and criminal responsibility.As for criminal responsibility,The Amendment(VII)of Criminal Law adds the crime of using nonpublic information in 2009,but for now,Chinese stock market is still in its infancy,The content is not perfect or just considerate.There are many questions which worth todiscuss.So the author direct at three aspects,which are the judge of nonpublic information,the Criminal subject as well as it's objective behavior.According to the introduction of this article,there are three chapters:The first chapter concentrates on the reach of nonpublic information,which is the core of this accusation.Due to the lack of legal basis and the judicial interpretation,the utilizing has many obstacles.this paper clarifies the meaning of“nonpublic information” as non-business information not known to the public and will affect some stock price,including information on investment management,supervision and management,and regulatory policies in financial institution and regulatory authorities.The basic characteristics are undisclosed and price sensitive.The securities trading activities Contain futures trading activities.The insider information and nonpublic information have essential differences,appears in contents,open request and the price impact on the stocks.The second chapter talks about the Criminal subject.There are fiduciary relationship theory in America and market basic theory in the European Union,they are common in the expansion trend,and China more agrees with fiduciary relationship theory.in our country,the crime of trading on nonpublic information's subjects is certain people,including relevant staff of financial institutions,relevant regulatory agencies,and self-regulatory organizations.In the identification of the institution,we need to base on legal provisions and the relationship between job content and price.as for certain people,we need to understand the job with its work.The view that the job status is tied to the qualifications,administration or career establishment is incorrect.This crime needs a certain identity,and the unidentified person separately uses the nonpublic information to implement the crime cannot form this crime.Subjective restrictions can be imposed in the application of non-accidental criteria,which can incorporate the behavior of some people without a certain job into the scope of criminal law.In the joint criminal act in which the unidentified person participates,the criminal liabilityThe third chapter analyzes the objective behavior.The objective behaviors specified in the criminal law of this crime can be briefly summarized as the transactional behavior and suggestive behavior.The suggestive behavior is that expressing or implying others to conduct securities transactions,which is necessary for criminal law sanctions because of its expansionary influence beyond the financial resources of the person,and there is no cross-relation between the suggestive behavior and the information disclosure behavior.Therefore,the behavior of information disclosure cannot be included in the suggestive behavior to be blamed,and it is necessary to add the leak-type behavior of this crime.In light of the lack of legal obligations of trading behavior and positive actions,the objective aspect of this crime does not include the act of inaction.Because of the existence of alternative trading behaviors,in the grasp of the relationship between undisclosed information and securities trading behaviors,it is necessary to pay attention to both direct relationship and objective existence of the indirect relationship,so as to avoid omissions in judicial practice.The profit or not and the amount of the result of the behavior can only reflect the seriousness of the plot and cannot be the reason for determining the nature of the behavior.In addition,in the determination of the amount of crime,the factors to be considered are the turnover,profit or loss avoidance;in the calculation of the amount,we must grasp the actual use of the information,and the principle of prohibiting repeated evaluation,cannot be artificially split the integrity of the buying-and-selling behavior.