| The information age is the era in which information generates value.Information is undoubtedly of great value in the present,especially in the financial sector.The use of undisclosed information trading crimes refers to behaviors in which an agent with a specific identity uses the dominant position of information to obtain improper benefits.This behavior not only damages the three public principles of the capital market,but also damages the interests of ordinary investors and their trust in financial institutions.In practice,the “Rat Trading” has been have frequently,which has greatly damaged the financial market order.In response to the widespread concern of the society,the“Amendment(VII)to the Criminal Law " has added the crime of using undisclosed information to regulate such acts.The “Amendment(VII)to the Criminal Law " is only the beginning of cracking down on the behavior of "Rat Trading".Carrying out the provisions of criminal law in judicial practice,giving full play to the deterrent effect on criminal acts,and achieving the purpose of protecting legal benefits are the most important.On June 28,2019,the Supreme People's Court and the Supreme People's Procuratorate issued the Interpretation on Several Issues concerning the Application of Laws in Criminal Cases Dealing with Undisclosed Information Transactions(hereinafter referred to as the "Judicial Interpretation"),convicting the use of undisclosed information transactions Sentencing standards,the application of laws and other issues were further regulated,fully reflecting the new situation andchanges in this crime,filling the gap in judicial interpretation of the use of undisclosed information transactions,and further strengthening the crackdown on the use of undisclosed information transactions.It is of great significance to maintain the fairness and stability of financial markets.However,there are still some parts of the "Judicial Interpretation" that are not clear enough and are likely to cause controversy.In order for the judicial authorities to apply relevant laws and regulations accurately,this article will focus on the criminal law provisions and judicial interpretation,focusing on the difficulties and disputes in judicial determination.Provide understanding and applicable theoretical support for the judiciary.The main part of the article has three chapters;the specific content of each part is as follows:The main content of the first chapter is the definition of the subject of crime.The content of this chapter is mainly divided into two sections: The first section mainly starts from the provisions of the legal provisions on criminal subjects,defines which financial institutions practitioners,and which regulatory agencies and industry association staff can become the main body of crime.A specific financial business,a staff member with a certain position,can not necessarily have a relevant qualification certificate.The second section is aimed at whether private equity practitioners can become the subject of this crime.Firstly,it discusses the rationality of its conviction,and then starts from its path of conviction.It believes that private fund managers can be included in the scope of financial institutions.Therefore,their employees can become criminal subjects.The second chapter is the exploration of the objective aspects of crime.First of all,to define the most basic " undisclosed information" in the crime of undisclosed information transactions,unpublished information as unpublished information other than insider information,consistent with insider information in essential characteristics,must be significant and not Openness.By comparing with insider information,the boundaries of unpublished information can be more clearly defined.Finally,based on the essential characteristics of the information and the difference with the inside information,the approximate scope of the undisclosed information isdetermined.Secondly,it focuses on analyzing and demonstrating the characteristics of objective behaviors stipulated in the legal provisions,and interprets the meaning of“expressive and suggestive”.It is believed that the key to distinguish between the two is whether to inform others of the specific content of the undisclosed information."It only includes direct and legal access to the job,and does not include illegal indirect access.The third chapter is the identification of the criminal form.The first section is the identification of the attempted form of this crime.This article believes that the crime of using undisclosed information transactions is a plot crime,and the plot crime is in the form of an attempt.If the act meets the elements of the crime,if the circumstances are serious,and the crime is established,but before all the necessary elements are completed,if the crime is forced to stop the criminal act due to factors other than the will,an attempt should be established.The second section is about the analysis and argumentation of the form of the accomplice.For those who have an identity to express or imply that others engage in trading activities,the issue of how to be convicted by an unidentified person who is expressly or implied needs to be explained by the principle of identity and accomplice.This article believes that in the case of conspiracy beforehand,the two can form a joint crime of this crime;in the absence of pre-existing circumstances,it is necessary to specifically subdivide two situations: the situation in which an identity person expresses another person can constitute a joint crime;Implied by others,the two have no joint criminal intentions and cannot form an accomplice to this crime.The fourth chapter is the understanding and application of sentencing circumstances.This chapter starts with the analysis of the setting of sentencing plots in the "Judicial Interpretation",and discusses the controversial points in the setting of sentencing plots.Adopting mixed legislation on the determination model of sentencing circumstances,the emergence of pocket clauses has brought great confusion and uncertainty to the criminal determination that meets the requirements for the amount of securities transactions.In addition,by analyzing some typical cases in judicial practice,the focus of disputes and existing problems in the application ofsentencing circumstances are analyzed,as well as the reasons for the application of sentencing circumstances.Then,in response to these problems,a correct interpretation of the sentencing standard setting and the way to apply this standard were proposed.It was suggested that the pocket clauses should be applied with caution,and that the pocket clauses could not be found to be in compliance with the pocket clauses only because of the huge transaction amount."In view of the determination of the more important crime amount in the applicable sentencing circumstances,we must adhere to the principle of prohibiting repeated evaluations,and buying and selling together constitute a complete transaction. |
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