| Since the reform and opening up,my country’s financial market has continued to develop rapidly.Although it started late,it is very strong.While the financial securities market has developed and prospered,it has also spawned many illegal and criminal behaviors that urgently need to be regulated.The behavior of its practitioners using their positions to facilitate access to securities trading information and then buying and selling stocks is the most typical.Because this kind of behavior is extremely harmful to the society,the 2009 "Criminal Law Amendment(7)" added the fourth paragraph of the criminal law to the crime of trading with undisclosed information in Article 180 of the Criminal Law.Prior to this,the first paragraph of Article 180 of the Criminal Law regulated insider trading and disclosure of insider information,but did not provide for the use of undisclosed information to trade.The determination of "undisclosed information" plays a decisive role in the establishment of the crime of trading with undisclosed information.However,at present,not only is it not clearly stated at the legislative level what is "undisclosed information",but also at the judicial level its determination standards are also Not the same.The author has searched the judgments on the crime of trading with undisclosed information on the Internet for the past ten years and found that judges generally have the problem of not reasoning about “undisclosed information”,and they often directly adopt the “confirmation letter” issued by the securities regulatory agency.As the basis for identification,the “letter of identification” often has the problem of inconsistent subject and formal standards.The issue of the inconsistency of the issuer standards is manifested in the following: some are securities regulatory agencies,and some are dispatched by securities regulatory agencies,such as the Hubei Securities Regulatory Bureau of the China Securities Regulatory Commission.The standard of issuance is not uniform: some are presented in the form of a confirmation letter obtained by the investigative agency,some are presented in the form of "Case Investigation Final Report",and some are presented in the form of "investigation data provided by the China Securities Regulatory Commission." The inconsistency of the standard for issuing the "confirmation letter" and the inconsistency of the formal standard will cause the defense lawyers to question the evidence validity of the "confirmation letter" in judicial practice,and lead to the proving power of the "confirmation letter" by the prosecution and the defense in court debates.Conflict,and the presence or absence of the key evidence of the "confirmation letter" plays a decisive role in the determination of "undisclosed information",and whether it is adopted or not will affect the development and trend of the case.From the perspective of legal norms,the fourth paragraph of Article 180 of the Criminal Law is just a new concept and does not explain what “undisclosed information” means.There are no relevant administrative laws and regulations that can be used for reference and can easily lead to judicial practice.Judges’ application of law is chaotic;on June 27,2019,the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Using Undisclosed Information Transactions"(hereinafter referred to as the judicial interpretation),Article 1 of the interpretation Two positive enumerations and one bottom-line explanation are made on how to grasp the extension of undisclosed information.There are many imperfections in the affirmative enumeration explanation.The definition of the extension of "undisclosed information" is not very comprehensive,and it is impossible to completely define "undisclosed information".The full picture of the extension of "public information".At the same time,there is also a conflict between the existence of the bottoming clause and the clear requirement of interpretation.This makes it impossible for judges to accurately grasp the types of "unpublished information" other than the two affirmative forms,which is prone to confusion,which leads to the risk of different judgments in the same case.Through the research and analysis of judicial judgment documents,this paper points out the problems in the identification of “undisclosed information” in judicial practice;The legislative reasons behind the problem of “disclosed information”;through studying the deficiencies of the existing regulatory documents on the“confirmation letter”,the reasons for the inconsistency of the subject standard and formal standard of the issue of the “confirmation letter” are analyzed,and then the improvement of the “undisclosed information” is proposed."Identified recommendations.First,by analogy with the provisions of the connotation and extension of "inside information",the "Securities Law" has added relevant provisions on "undisclosed information";second,from the perspective of perfecting judicial interpretation,clarifying the judicial interpretation regarding "undisclosed information" Third,from the perspective of drawing on foreign legislation,amend the criminal legislation for this crime to promote the improvement of the legal system;fourth,from the perspective of promoting the connection of executions,strengthen the review and judgment of the "confirmation letter",and from the clear"confirmation letter" "Confirmation letter",improve the issuance standard of"confirmation letter",and promote the connection and application of administrative evidence and criminal evidence of "confirmation letter",and provide suggestions to ensure the determination of "undisclosed information" in the crime of trading with undisclosed information Accuracy. |
