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Research On The Scope Of The Subject Of Insider Trading And Revealing Insider Information Crime

Posted on:2020-06-06Degree:MasterType:Thesis
Country:ChinaCandidate:Y F LuFull Text:PDF
GTID:2416330623954096Subject:Law
Abstract/Summary:PDF Full Text Request
The crime of insider trading and leaking inside information is essentially a resource superiority crime.It is manifested in the advantage of the criminal subject's use of resources,before other public investors react to sensitive information affecting the price movement of securities,in order to obtain huge illegal interests from the securities market or reduce losses,and harm the interests of other ordinary investors.,causing a crisis of confidence and the withdrawal of investors,affecting the normal order of the securities market.Compared with the United States and other countries,due to the late start of China's securities market,there are many places in the development process that are not standardized.The market regulation system is not yet mature,and securities supervision is not strict enough,which indirectly causes some illegal activities such as manipulating the market and insider trading.The breeding and embarrassment,especially in matters such as asset mergers and acquisitions and restructuring.Judging from the cases in which the CSRC investigated and dealt with illegal activities in 2018,there were a total of 87 cases involving insider trading,of which 57 cases involved in insider information related to asset mergers and acquisitions1.It can be said that the field is still a high-risk area for insider dealing.The reason why this happens is mainly due to the fact that the process of asset mergers and acquisitions involves various aspects.This process needs to go through a long period of time,which can easily affect the market to a certain extent.It is easy for the unscrupulous actors to exploit the unscrupulous interests.Insider trading is an important issue facing the development of China's securities market,and there is an urgent need to contain it.Therefore,the types of crimes of insider trading in recent years have gradually become the focus of law enforcement in China.At the same time,the types and forms of the subject matter of insider trading are relatively complicated.Regardless of the theory or practice,there are many disputes over the subject of insider trading and the disclosure of insider information(hereinafter referred to as "the insider trading subject"),and we need us.This will be comprehensively organized and systematically analyzed to provide accurate guidance on the regulation of insider trading.We need to comprehensively organize and systematically analyze these issues and provide accurate guidance for the regulation of insider trading.The full text is divided into three chapters in addition to the introduction:The first chapter sorts out the current laws,including "The Criminal Law of the People's Republic of China"," Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases of Engaging in Insider Trading or Leaking Insider Information "(hereinafter referred to as "Two High" Interpretation)," Securities Law of the People's Republic of China",and "Futures Trading Management Regulations"," Regulation on the Administration of Futures Trading" and other legal and normative documents of the domestic trading entities,and deeply analyzes the defects and deficiencies in the legislative norms.First of all,the criminal law system of insiders of securities inside information mainly adopts the drawbacks of enumerating the legislative model with the bottom of the list.The enumeration content is too narrow and cannot avoid the situation of hanging out.There is no accurate summary of the basic principles and substantive standards for those who know the inside information,which may cause the discretion of the securities regulatory authority to be too large,which will eventually lead to thecontinuous expansion of the scope of insider trading regulation in judicial practice.For those who illegally obtain insider information,whether the interpretation of illegality refers to the illegality of means or the objective state of obtaining information without obtaining it has always been controversial.In addition,there are many unclear statements in the expression of legislative norms.For example,the criminal law norms of insiders of insider information use some very vague words like“other people” and “related departments” to give clear criminal justice practice.Accurately defining the scope of insider information insiders is a great inconvenience.In addition,the legislative norms are too lagging,the trading model is constantly changing,and the trading entities are also diversifying.Many new contents have not been reflected and adjusted in time by the current law,which will inevitably cause confusion to judicial practice.The defects in the legislation will inevitably be reflected in the judicial practice,leading to the judicial practice to break through the legislative intent,and through the second interpretation of the criminal norms,continue to expand the scope of regulation of insider trading entities.Moreover,there is no good connection between administrative law enforcement and criminal justice.Many administrative norms and penalties are inconsistent or even completely conflicting.How to apply administrative normative documents,the legal organs are caught in a dilemma.The second chapter mainly discusses and analyzes the root causes of the dilemma of insider trading entities.There are many practical reasons for problems in legislation and practice,but in the final analysis,it is because there is a lack of unified and effective guidance on the theory of imputation.At present,there are two mainstream attribution theories of insider trading regulation,the theory of faith relations represented by the United States and the theory of information equality represented by the European Union.The theory of faithfulness and obligation advocates that the subject that constitutes insider trading must have a fiduciary duty to the company.The theory of information equality advocates that anyone who knows the insider information will satisfy the main elements of insider trading.China's criminal norms show the tendency to apply the theory of faith and obligation,whilethe judicial practice and the CSRC's normative documents carry out the theory of information equality.However,there is a contradiction between the theory of information equality and the theory of faithfulness,and the two cannot be compatible in the same legal norm system.To solve the problem from the source,we must find a theoretical system that applies to the reality of our country.The third chapter analyzes the perfect direction of China's future definition of insider trading.Through the comparative analysis of the two theories,I argue that the theory of information equality should be regarded as the theory of attribution of domestic trade.The American theory of faithfulness and obligation is constructed under the framework of fraud clauses.China's insider trading regulation is not a necessity for fraud,nor is there a common law tradition applicable to the theory of faith obligations.Moreover,the belief obligation theory itself has inherent flaws that cannot be circumvented,and it seems to be a bit stretched in the application process of the specific insider trading body regulation.On the other hand,starting from the reality of our country,the theory of information equality is more in line with the basic principles of China's securities law,which helps to effectively combat insider trading behavior and is more operability.In addition,this paper suggests that the information should be the center to construct the corresponding standards.As long as the agent is aware of the inside information,it should be included in the scope of the insider trading.Secondly,the specific types of insider trading entities are reclassified as“direct informants” and “indirect insiders”,and the insider trading entities are limited by causality correlation standards and contingency standards.It should be noted that in the application of the identification method in specific judicial practice,the identity regulation path should still be taken seriously.
Keywords/Search Tags:The subject of Insider Trading, The imputation theory, Further improvement
PDF Full Text Request
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