| The "Rat Trading" behavior discussed in this paper is a general term for a class of illegal operations in securities and futures trading."Rat Trading" is not a legal term,the criminal law and other laws have no explicit provisions on it.The traditional concept of "Rat Trading" insists on the nature of "breach of trust theory",and its target is only the relevant practitioners of financial institutions.However,after article 180(4)of the Criminal Law is amended as the crime of trading with unpublished information,in reality,it is often used to fight against the crime of "rat storehouse",which is characterized by "insider trading theory".However,at the legislative and judicial level,due to the indecision on the nature of the "Rat Trading",there are contradictions in the legislative and judicial process,which results in the judgment that the "Rat Trading" behavior does not fully meet the current constitutive requirements of the crime of trading with unpublished information.Therefore,the author puts forward that the crime of non-public trading should not be used only to be convicted,but should be based on the actual case of "Rat Trading" to be convicted,so as to achieve the principle of crime equivalence.Otherwise,the determination of "Rat Trading" in the criminal law will become rigid,which is not conducive to the conviction and sentencing.In addition,it is necessary to find a new way to improve the regulation of the existing legislation on the "Rat Trading".This paper will be divided into the following three parts to study:The first part is an overview of mouse behavior.First,the concept of "RatTrading" is listed,divided into the traditional theory of "Rat Trading" behavior concept and the official interpretation of "Rat Trading" behavior concept,found that the community,the past and the present concept of "Rat Trading" different understanding,it is difficult to have an accurate conclusion.And then analyzes the legal nature of the "Rat Trading" both "insider trading",again there is a "breach of trust",and then through the analysis of our country to regulate the behavior of "Rat Trading" legislation evolution,also found the legal nature of the "Rat Trading" legislators swing,but now in the criminal law,the usual practice is to "Rat Trading",in accordance with the use of nonpublic information transaction to sin.The second part is the analysis of the shortcomings of identifying ‘Rat Trading’by using unpublished information to trade.Firstly,the author analyzes the criminal subject of ‘Rat Trading’ and finds that the financial market infrastructure should be listed as the criminal subject in practice.Secondly,through the analysis of the unpublished information of the "Rat Trading",it is found that the "unpublished" and "price sensitivity" of the unpublished information are not clearly understood in practice.This paper analyzes the trading time of ‘Rat Trading’ again,and finds that the theory of "first 5,then 2" and "convergence trading" in practice lacks theoretical and legal basis for the identification of trading time.And regulation "Rat Trading" of crime,appear the reason of the shortage of the situation analysis,because of using undisclosed information trading itself of the insufficiency of the legislation,but the ultimate reason is the law in the trial of all kinds of "Rat Trading" understanding unclear legal nature,results in a Shi Shui Li difficult or even applicable law error.The third part is about the above problems.The author thinks that the legal nature of "Rat Trading" should be clarified at first,and the regulatory approaches should be improved respectively for "Rat Trading" with "insider trading theory" as the essence and "breach of trust theory" as the essence.In the face of "Rat Trading" of insider trading,judicature should judge the timeliness of information according to the general rational person and the objective financial market environment.Legislatively,it would increase the number of people involved in financial infrastructure to the number of criminals using undisclosed information.In the face of faithless "RatTrading",the current law should regulate the "Rat Trading" of "trade secrets" by the crime of infringing trade secrets.However,the author hopes to improve the legislation in two ways: first,to amend the existing two types of breach of trust crimes,namely the crime of breach of trust using entrusted property and the crime of illegal use of funds,but to add a general breach of trust rather than a special breach of trust.In the face of complex "Rat Trading" behaviors,it is not easy to make wrong judgments by distinguishing the legal nature of "Rat Trading",and it can also emphasize the protection of credit,which plays an increasingly important legal interest in the financial market. |
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