| The difficulty of identifying persons who engage in insider trading in China long stems from the unclear meaning,unclear scope definition and confusing logical structure of the sentence system.Since the revision of the new Securities Law,the legislative framework of "insiders + illegal access" has tended to be stable,and the scope of inside information has been greatly expanded,effectively making up for the loopholes of the original model.Reviewing the current binary classification model,the identification of the scope of insider trading subject is dominated by the identity relationship,and the purpose is to build a regulatory paradigm based on the specific identity and position relationship.However,the current regulations still have deficiencies in the typology of insiders,and the understanding and application of "illegal" have not yet been unified.In other words,the ambiguity of binary classification and the limitations of identity recognition do not promote a clear definition of subjects to solve problems.The root of the problem lies in the regulation theory of prohibiting insider trading in China for the anti-fraud theory based on fiduciary duty in the United States.According to the anti-fraud theory,the essence of insider trading is the fraud of the perpetrator to the shareholders or information sources of the company.However,the actors do not make any statements,nor do they have the obligation to disclose them.They only act based on the reliable information they have available.In this process,they do not infringe on the investors’ right to know and mislead their trading decisions,and it is difficult to classify them as fraud.The use of the uncompetitive information advantage damages the reasonable trust of the public investors in the fair trading of the securities market,and the destruction of the rules and the pursuit of unfair interests should be regarded as cheating.The wrongfulness of conduct undermines the right of all investors to conduct a fair trade on the basis of equal access to information,rather than fraud based on fiduciary duty.Therefore,the theory of market equality focusing on the integrity of the securities market and the protection of investor confidence should be used as the theoretical basis for regulating insider trading in China.How to identify the subject of insider trading,the legislation and many scholars advocate that the presumption is made according to the identity of the actors,because the insider information originated from the company,and the insider is the source.However,according to the insider trading enforcement practice of CSRC,no matter what identity the parties have,they usually deny that they have learned the inside information,and the regulators need to look for evidence to prove that they actually know the inside information.In fact,any standard to identify the scope of the subject is essentially seeking a specific connection between the actor and the inside information.However,the specific identity only has the convenience and possibility of obtaining inside information,and the judgment of the insider trading subject should be based on the knowledge of inside information around the generation and transmission process of inside information and the specific situation of the actors’ participation in securities trading.Therefore,the identification of the insider trading subject should turn to the insider information as the link and "knowing" as the substantive standard.With the theory of market equality and "knowing" as the substantive standard of subject identification,the legal rules should be reconstructed by legislation,aiming to ensure the flexibility and effectiveness of the standard system of insider trading.Specifically,the legislation should break the existing binary classification mode to uniformly stipulate the subject of insider trading as "insider".In order to connect the abstract subject description and the concrete legal practice,the typing of the subject is also indispensable in the legislation.The administrative law enforcement and judicial judgment only need to prove that the actors "know" of the inside information,and the inevitable connection with the "knowing" is the connection between the actors and the inside information.The specific classification of insider trading subjects is actually to seek whether the actors have a specific contact with the insider information and the degree of contact.Therefore,based on the direct or indirect connection between the actors and the insider information,the insiders can be distinguished as direct insiders and indirect insiders.Direct insiders participate in the formation,development and transmission of inside information.There are more direct evidence in the proof.Indirect insiders are not directly related to insider information.Due to its concealment and complexity of indirect evidence,it is vital to make a comprehensive judgment on the basis of comparison. |
