Study On The Difficult Problems Of Insider Trading Crime

According to the administrative penalties issued by the CSRC in 2019,the cases involving insider trading in 2019 accounted for 40% of the 136 administrative penalty decisions in 2019.Insider trading has become a major drawback to the development of China's securities market.The new securities law in 2020 has increased the penalties for insider trading and expanded the scope of penalties.However,there is often a problem of insufficient criminal regulation when punishing serious insider trading.How to perfect the determination of the subject,object,behavior and illegal amount of insider trading crime and make it conform to the prevention and treatment tendency of severe punishment is the focus of this paper.The first chapter is about the subject identification of the crime of insider trading,which introduces the problems existing in the identification of the natural person and the unit as the subject of the crime,and the suggestions for the improvement of the identification.On the subject identification of insider trading crime,specific issues include:1.Whether person illegally obtaining inside information is the same as person obtaining inside information by illegal ways;2.Is the subject of insider trading a general subject or a special subject?These two questions are of great significance to correctly understand the target of the crime of insider trading and to protect the interests of the law.This paper holds that person illegally obtaining inside information is not the same as person obtaining inside information by illegal ways,and the subject of insider trading crime is a special subject.This paper first discusses that thedistinction between the general subject and the special subject is based on the standard of obligation rather than on the standard of position and identity,and further puts forward that in the crime of insider trading,insiders are not allowed to engage in insider trading,not only because of the position,but also because of the specific obligation brought to them by their specific position.Chapter two discusses the identification of inside information.The academic community generally agrees that the identification of inside information is characterized by its importance and secrecy,but there are still big disputes about how to identify the secrecy and importance,and whether there are other characteristics of inside information.This paper argues that,to judge the formation time of the inside information,we only need to reach an agreement on some content that can make the major issues determined and have a real possibility of being translated into reality,but we do not need all the major issues to have the possibility of becoming reality,nor do we require the major issues to be implemented into reality.The disclosure should be dominated by formal disclosure and supplemented by substantial disclosure.In the identification of importance,no significant impact should be required to actually occur.As to whether authenticity and relevance can be used as the identification characteristics of inside information,this paper holds a negative view.There are still some problems in the context confusion and contradiction in the argumentation part of the negative theory in the academic circle,so the existing literature is not sufficient for its argumentation.This paper holds that both authenticity and relevance are the characteristics of insider information,but they should not be used as the identification criteria of insider information.Authenticity is inseparable from secrecy.Relevance can only be a factor in determining the importance of inside information.There is no need to identify these two as identification characteristics of inside information.Chapter three discusses the implementation of the crime of insider trading and discusses the specific identification of the elements of using,expressing or implying and the mode of omission.This paper holds that the use of insider information is a constituent element of insider trading behavior.Although the use of insider information is not explicitly stipulated in the criminal law,it can be regarded as anunwritten constituent element,so it will not violate the principle of legality.Although negativism can make up for the regret of the difficulty in proving the affirmative,but there are a lot of incomplete inside information in practice,in this case,the negativism is obviously a hypercorrection.This paper holds that the presumption of using can not only relieve the pressure of the judicial organ,but also prevent the unreasonable expansion of the punishment.The difference between expressing and implying lies in whether the insider information is told to the other party,but it is of little significance to distinguish between them in practice.Insider trading can also include omission.The use of insider information is the source of obligation.In the crime of insider trading.The distribution of burden of proof for the use of inside information should be distinguished between Begehungsdelikte and Unterlassungsdelikte.Chapter four discusses the difficulty and perfection of determining the amount of illegal earnings from insider trading.In view of the determination of part of illegal income not sold after purchase,it is suggested to calculate the amount by the weighted average of the price during the influence period after the disclosure of the insider information,which not only conforms to the principle of subjective and objective consistency,but also can reduce the impact of the volatility of the stock price.In calculating the proceeds of crime of advisers,we should also consider the proceeds of crime of relatives and close associates of those directly advised,and of those likely to receive such information and engage in insider trading within the advisers' expectation.