Several Problems On Criminal Regulation Of Insider Trading

Almost every country in the world made prohibitions on insider trading . Civil law , administrative law, criminal law are adopted to regulate insider trading, among them, criminal regulation is an inevitable trend. Chinese criminal regulation on the crime of insider trading first appeared in criminal law in 1997, after the amendment of criminal law in 1999 and in 2009, regulation on this crime made great improvement. But in theory and practice,there still exist some controversial issue about the constitutive elements of this crime.After the seventh amendment of criminal law , the subjects of insider trading crime include" insiders konwing inside information of securities trading, persons who illegally gain the inside information and other crime subjects ", but the range of insiders regulated in "criminal law" and " securities law" needs to expand, also ,the meaning of"illegally gain" needs to be more clear. Besides , the regulation about subjects of this crime in our country's criminal law does not make difference between identities, and regulates unified penalty. That's not entirely reasonable, punishment adjustments based on different identities should be made.Subjective mentality of this crime is deliberate intention, not negligence, the " profit goals" as the open constitutions of this crime should be necessary.The objective aspects of this crime include buying and selling behavior, and the behavior of expressly or impliedly making others trade, but the relationship between knowing insider information and the behavior of insider trading is not clear, namely whether inside information is necessary for trading behavior. Besides,that is appeared in the enforcement practice ,using presumption to affirm insider trading facts. Take it further ,if the proof burden invertion is adopted in this crime's judicial cognizance ,the strike on this crime will be more powerful. This article will make discussion on above problems from the angle of constitutive elements of this crime,in order to further understand this crime in theory, and to better punish and control this crime in practice. This article consists of preface, text,and conclusion ,the text is divided into two chapters:The first chapter expounds the essential definition of insider trading , and the necessity of criminal regulation.The second chapter discusses the problems of constitutive elements of insider trading crime. It is divided into three parts :Firstly, it is the problem on subjects of insider trading crime. It focuses issues on the range of insiders , the meaning of"illegally gain",and whether the persons who get insider information in other ways constitute the subjects of this crime, as well as that,after resetting the subjects of this crime, some suggestions on punishment adjustment will be put forward according to the principle of suiting punishment.Secondly, it is the problem on subjective aspect of this crime. Including that, whether negligent behavior constitutes this crime, and whether"profit goals"are the necessary element for subjective.Finally, it is the problem on objective aspects of this crime. The discussion focuse on issues whether inside information is necessary for trading behavior, and that, the application of presumption and proof burden invertion in this crime's judicial cognizance.