The Judicial Determination Of The Crime Of Unlisted Information

The crime of trading on undisclosed information is a new crime added through the "criminal law amendment (seven)" passed by Standing Committee of National People’s Congress on February 28,2009. The adding of this crime signifies our countries’attention towards funds crime. In recent years, besides trading on insider information to commit the insider trading crime in the financial market, some financial institutions employees and the staff of relevant regulatory authorities or industry associations take advantage of their positions to trade securities and futures on undisclosed information, by buying on low price and selling after using the customer funds to pull up the price, making profit from this. This behavior is vividly called the "rat" behavior. In financial practice, Tang Jian and Wang Limin’s "rat" trading is a typical case of trading on undisclosed information, which attract wide attention from the society. After realizing the serious destruction of this behavior to the financial management order, the government adds this accusation--"the crime of trading on nonpublic information" in order to regulate this behavior.In the current judicial practice, in the process of this crime of judicial determination, there still exists many problems which are difficult to define. Through the four parts’ introduction, this paper aims to learn some experience and find the deficiencies by comparing other countries’related regulations about this crime. This paper focuses on the analysis of the objective aspects of the crime of trading on undisclosed information identification. On the determination of the objective aspects of the crime, first of all, defining what is " undisclosed information". It’s difficult to find the specific regulations about "specific provisions for undisclosed information" in the law, so I has made the corresponding limits through the analysis of "undisclosed information" concept. Then I analyze the objective behavior in the crime of trading on undisclosed information, what is "take advantage", what is "the behaviorer engaged in the trading behavior", what is "express, implied others to engage in related transactions". I don’t think leaking undisclosed information constitutes the use of undisclosed information, and I also analyze other elements of the crime of trading on undisclosed information. For the identification of other factors is mainly the definition of the violation of provisions and the identification of "serious circumstances". There is no big dispute about identifying the subjective aspect of the crime of trading on undisclosed information. Most scholars believe that the subjective aspect of the crime is intentional, and I agree with their opinion. I also discuss that whether "for the purpose of profit to" can constitute the crime. Finally I make some comparison between the crime of trading on undisclosed information and other crimes, so I can make the corresponding definition of this crime and other crimes.Through the above analysis, There still exists many uncertainties about the determination of the crime of trading on undisclosed information. Even the identification of many problems is in the vacuum state, which also leads to the dilemma of the judicial practice on the determination of this crime. Therefore, we can not simply rely on the single ideas; we should combined a variety of means together to jointly solve this problem. Despite this crime has already existed for a period of time, there are still many problems can not be defined clearly in the process of the determination of this crime, therefore I discuss this problem through this paper.