| In March 2020,according to the development of China’s securities market,the newly revised “Securities Law”was put into effect.the new “Securities law”officially changed China’s securities issuance system into the registration system,and the reform of the registration system was regarded as a crucial step.Compared with the previous approval system,the biggest difference is that the audit focus has been shifted to information disclosure.Under the background of the registration system,the authenticity,accuracy,and completeness of the company’s public information are the key to the orderly development of China’s securities market.The crime of fraudulently issuing securities regulates the behavior of false information disclosure at the stage of securities issuance and is the source of securities crimes.This illegal act not only violates the national securities issuance management system,also cause the majority investors suffer great losses.Therefore,the government should strengthen the efforts to crack down on the illegal activities of fraudulent issuanceIn order to coordinate with the revision of the new “Securities Law”and establish a criminal legal system of securities that is compatible with China’s current securities market,the Amendment(XI)to the Criminal Law has amended the crime of fraudulently issuing securities.The amendment meets the public’s demand for more severe punishment for fraudulent issuance,extends the term of imprisonment for this crime,and the amount of fine imposed has also broken the previous limit.At the same time,it has also broken the scope of the original legal provisions for fraudulent issuance and clarified the scope of applicable documents.Criminal liability for fraudulent issuance by shareholders and actual controllers,etc.This revision has the positive significance in regulating the illegal acts of fraudulent issuance,but there are still some problems,the expression of some key contents is not clear enough,there are disputes,and it has created obstacles to the application of the crime in judicial practice.This paper discusses and analyzes the crime of fraudulently issuing securities from four aspects,and expounds the existing problems in the application of this crime and their solutions through the research of comparative law and the analysis of the current judicial practice,summing up the main difficulties in regulating fraudulent issuance,including the identification of the liable subject of fraudulent issuance,the identification of the manner and content of fraudulent issuance,and the controversy over the form of the crime,by sorting out and analyzing these problems and putting forward pertinent suggestions,the crime of fraudulently issuing securities can be applied more effectively and accurately in the future,so as to promote the orderly development of China’s securities market,protecting the vital interests of investors.The first part of this paper mainly expounds the historical evolution of the crime of fraudulently issuing securities.It mainly writes the legislation of this crime before and after the amendment of the Amendment(XI)to the Criminal Law and the impact of the reform of China’s securities issuance registration system on this crime.At the same time,it also demonstrates the development direction of the criminal system for securities issuance after this reformation.Under the registration system,complete and accurate information disclosure is of great significance.If issuers or intermediaries made false statements and conceal important information in offering documents,which shall disclose to stock exchanges,securities markets,and investors during the securities issuance process,etc.,It may cause serious consequences.The Amendment(XI)to the Criminal Law has revised the crime of fraudulent issuance of securities.This revision has supplemented and improved the criminal legal system governing illegal acts of securities issuance,and paid close attention to the needs of the development of the securities market.The reform of the registration system for guaranteeing securities issuance is of great significance,and it has achieved a close connection with the new "Securities Law." However,there are still some problems in the practice of this crime,such as the method of fraudulent issuance of this crime,the determination of the content of the behavior,and the identification of the subject of the crime.The form of the suspension of this crime is still controversial and relevant judicial interpretations need to be promulgated,in order to improve this situation..The second part mainly discusses the identification of the crime of fraudulently issuing securities.This part mainly studies how to define “Concealment”and“Fabrication”as the behavior way of issuing fraudulently,and to the behavior content“The important fact”“The significant false content”the implication cognizance.In addition to this,the definition o f the new addition to the The Amendment(XI)to the Criminal Law such as the offering documents has been controversial discussed.After this amendment,the restriction of the listing provisions of the original law was broken finally,and the Miscellaneous Provisions of “offering documents,etc.”were added at the end of the three documents,thus breaking the limitation of the original law on regulating illegal acts of fraudulent issuance,to remove the obstacles in the application of the law and meet the requirements of judicial practice,but the connotation of “offering documents,etc”is not clear enough,so it needs to be elaborated in the judicial interpretation further.The third part mainly discusses the identification of the liability subject of this crime,which mainly involves the analysis and demonstration of the liability of the issuer,the controlling shareholder of the company,the actual controller,the company’s internal personnel,and the intermediary agency for the fraudulent issuance.Firstly,this paper try to analyze whether it is appropriate to punish all the issuers,and secondly,this paper try to make clear what kind of responsibility the controlling shareholder and the actual controller,as the biggest beneficiary of the fraudulent issuance,should bear,once again,the division of the company’s internal personnel,drawing on the “Securities Law”directly responsible for the competent personnel and other directly responsible personnel to define the concept,in order to distinguish the criminal responsibility of different personnel in the company for the fraudulent illegal acts,and finally discussed the criminal responsibility of the intermediary agent should be investigated,in order to urge this agent to play a better “Gatekeeper”role in securities issuance.The last part discusses the determination of the ceased form of the crime of fraudulent issuance of securities.At present,there is still controversy as to whether there is a form of cessation of this crime.The author believes that there is a form of cessation of this crime.Only when the criminal responsibility for the attempted crime and the discontinuation of this crime is clearly determined,can deter some enterprises with a sense of luck from falsifying the contents of the application documents.Thereby further safeguards the listing and issuance of high-quality enterprises,and promotes the orderly development of the securities market.When determining the attempted form of this crime,the time point for the commencement and the completion of the crime should be defined.When determining the form of suspension of this crime,attention should be paid to distinguish it from the form of attempt.The key point is to see whether the unsuccessful fraudulent issuance of securities is caused by the will of the criminal subject or by accident. |
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