Research On The Establishment Conditions Of The Crime Of Securities Insider Trading

Although China's construction of the legal system of the securities market started late,it is accompanied by the revision and improvement of important laws such as the Securities Law,Criminal Law,and Company Law,as well as various types of insider trading,market manipulation,and false information disclosure.With the release of judicial interpretations,securities and futures laws and regulations are constantly being improved and updated to meet the needs of market development and supervision.Supervisory departments have also accumulated rich practical experience in investigating and dealing with illegal acts such as insider trading,market manipulation,and false information disclosure.However,the regulation of insider trading in the domestic capital market is mainly based on penalties.When the new "Securities Law" is about to emerge,what kind of test has the legislation experienced in cracking down on securities crimes,and it should be the health of the capital market in the next few years? What kind of road is paved to develop and enhance the grand vision of global financial influence? The crime of insider trading of securities in this article is even more meaningful.Through the collection of criminal judgments on securities insider trading crimes in the past ten years,the author summarizes the following four core issues on securities insider trading crimes: the first problem is that the criminal object of securities insider trading crimes is too abstract;The main boundary of the crime of securities insider trading is unclear.The scope of the subject is different under different doctrines,and because the current legal norms use different subject identification standards,it has caused difficulties in applying law in practice.Mainly reflected on the subject identification of personnel of state party and government agencies who have authority over state-owned enterprises and the subject matter of "neutral persons" who obtained inside information through natural behaviors,such as accidental hearing.The author advocates analyzing these two special subjects through the principle of legal interest protection.The third problem is that the subjective identification standard of the crime of insider trading in securities is not clear.How to determine insider trading has always been a difficult matter in China's law,especially subjective elements.The fourth problem is that the objective behavior and the object of the crime of securities insider trading are not clear.The first chapter of this article aims at 44 criminal judgments of insider trading crimes and related literatures,and proposes four aspects of legal issues,namely(1)the object of securities insider trading crimes is too abstract.Focus on the theory of order and the theory of company and shareholder property.(2)Identification of the subject of the crime of securities insider trading,which mainly focuses on the subject identification of personnel of state party and government agencies who have authority over state-owned enterprises and "neutral persons" who obtain inside information through natural behaviors,such as accidental hearing Subject identification problem.(3)The subjective identification standard of the crime of securities insider trading is not clear.(4)The objective behavior of the crime of securities insider trading and the identification of the behavior object are unclear.The core of this article is the second chapter,the third chapter,the fourth chapter and the fifth chapter,respectively,to demonstrate four legal issues.The second chapter argues that the object of the crime of insider trading has different academic opinions on the legal benefits of this crime.Some scholars believe that it should be a single object of "market order" or a dual object of "investor interest" and "market order".Other scholars believe that the "property rights of companies and shareholders" is also the subject of the crime of securities insider trading.The author in this chapter is divided into two parts to explore the legal benefits infringed by this crime.The first part analyzes the feasibility of legal interests such as order theory and company and shareholder property theory proposed by some academics.The second part is the crime of fraud.The comparative analysis considers that the legal interest infringed by this crime is property legal interest,and advocates that the object infringed by this crime is the property rights of unspecified investors through the monism in collective legal interest,and resolves the doubts in it.In the third chapter,on the issue of subject identification,the confusion of the subject identification theory of securities insider trading crimes has led to the identification of two types of people: "national party and government agency personnel" and "neutral persons".This chapter discusses the subject identification in two parts.In the first part,the author reviews the advantages and limitations of the three existing recognition theories.The second part is based on the legal benefits protected by the crime of insider trading,and examines the above two types of subjects according to the legislative criticism function and the supplementary principle of the principle of legal interest protection.State officials have obtained inside information for insider trading due to their power activities,and the transaction amount is huge,which has seriously infringed on the property rights of an unspecified majority of people,so the state should use penal regulations.However,because the existing law has created a regulatory vacuum for this type of personnel,the author believes that it should be incorporated into the regulation of this part of the body through judicial interpretation.For "neutral persons",I believe that from the perspective of the infringing object and social harm,Although humanoids violate the property rights of an unspecified majority,such incidents rarely occur.According to the supplementary principle of the protection principle of criminal law,the principle of protection of legal interest does not mean that as long as there is infringement or danger of legal interest,it must be criminalized.Therefore,such persons should not be included in the regulation of penalties but pass the regulation of administrative penalties.The fourth chapter is the subjective determination of the crime of insider trading in securities.The argument of this article is divided into two parts.In the first part,the author discusses the sinful form of this crime through observation of extraterritorial laws and the controversy of our academic circles.The author agrees that the subjective elements of the crime consist of direct intentional and indirect intentional intentions,and the criminal purpose is not a necessary condition.After solving the crime form of this crime,it is still a difficult problem to determine the subjective crime form of this crime.The controversy over this model in academic and practical circles is mainly divided into the theory of possession and the theory of use.After analyzing these two recognition models,the author believes that the legislative model combining "holding" and "statutory exemption" in Hong Kong should be used for reference.This legislative model solves the disadvantages of the "presumed" uncertainty proof method,adopts a clear legal prohibition,and directly avoids the tedious process of proving the causal relationship between inside information and trading behavior,which is more in line with the strict crackdown on insider trading while protecting the market.Original intention.This can provide greater space for free market transactions and improve the effective flow and operation of funds.At the same time,it can prevent insiders from defending for a variety of reasons and circumvent legal liability.The fifth chapter is divided into three parts in the identification of inside information.In the first part,there are three main issues in the identification of insider trading behavior of securities: whether "suggested behavior" constitutes a crime.Viewpoint: "Suggested behavior" should not necessarily constitute a crime according to the behavior of the actor,the object,and the transaction behavior;whether the "utilization behavior" is one of the constituent elements,the author holds a negative view.Although the support does not require the "utilization" requirement,in order to maintain the modest principle of criminal law and to combat insider trading to the greatest extent,the author believes that the "holding" theory can be restricted by legal exemptions;Constitute a crime,I think it does not.Because the actor has only the obligation to disclose or otherwise abstain from trading,that is,before the disclosure,the actor's obligation is to prohibit the trading behavior without the obligation to buy and sell.In the second part,the author argues that inside information should promote two characteristics: the undisclosed and significant nature of inside information is sufficient to reflect the nature of the information and is more conducive to cracking down on insider trading.In the third part,the author analyzes the sensitivity of inside information.The author believes that the difference standard advocates judging the formation time of inside information,and the fluctuation of securities stock prices reflects the disclosure time of inside information.