Research On The Crime Of Unpublished Information Transaction

February 28,2009,China's "Criminal Law Amendment(7)" additional use of undisclosed information transactions,began to use the penalty to deter serious harm to society,"Rat" crime.The use of undisclosed information transaction crime and insider trading,disclosure of insider information crime together to build China's capital market transactions within the crime system.However,due to reverse legislation and language ambiguity and other issues,judicial practice on the determination of this crime there are a number of difficult problems.In the near future,the Supreme People's Court on the case of the re-trial of the Ma Le case,making the law of the application of the law once again become a theoretical and practical controversy hot spots.This article aims to combine the principles of criminal law and economic law,through grasping the behavior of "Rat Trading",analyze the crime of using undisclosed information transaction crime,solve the confusion of judicial identification,explore the reasonable boundaries of this crime plot,in order to benefit the judicial Applicable for precision.The paper is divided into the following four parts:The first part introduces the concept and cause of the "Rat Trading" behavior,the legal attribute and the real harm,the foreign and the legislation of our country.First of all,the capital market for horizontal division,followed by "Rat Trading" in the stock,bonds,futures market concept.Secondly,according to the relevant provisions of "Company Law","Trust Law" and "Securities Investment Fund Law",this paper analyzes the legal attributes of "Rat Trading" which deviate from faithfulness,conflict of interests and unfair competition,Rat Trading "on China's capital market order,the state financial management system and the three types of investor rights and interests of the real damage.Finally,through the analysis of the developed countries on the "Rat Trading" crime into the prison situation and characteristics,review our use of undisclosed information transaction crime legislation,reflect on China's legislative advantages and disadvantages,dynamic grasp of the use of undisclosed information transaction crime trend.The second part of the use of undisclosed information transaction crime elements in-depth analysis,clear "undisclosed information","job convenience","violation" and other elements of the connotation.The undisclosed information has four basic characteristics: openness,price sensitivity,difference,and authenticity.On the objective side,the use of undisclosed information transaction is a crime in the financial field,so the core of the "job convenience" is that the perpetrator has a legal right to know the information;"violation" is not limited to state regulations,but also includes industry self-specification.The direct trade behavior focuses on "actual control" rather than account name.This crime is a true identity,private equity fund practitioners are not the subject of this crime.According to the "official theory" to determine whether the regulatory staff and industry associations have the status of national staff.The subjective guilt of this crime is limited to direct intention.Seeking economic benefits or avoiding losses is only a criminal motive,not a constituent element.The third part is intended to clarify the use of undisclosed information transaction crime to determine the boundaries of the judiciary.In the judicial practice of this crime,there are different calculation methods of the turnover,the relationship between the transaction activity and the undisclosed information is fuzzy,and the standard is proved to be too high.Criminal behavior involved in the amount of building positions and running positions are the destruction of the market order,so the turnover should be the amount of building positions and run the sum of the amount.The trading opportunity is limited to,prior to,or later.According to China's A-share market and H-share market linkage research,the transaction varieties as long as the indirect correlation can be.The fourth part tries to solve the problem of setting and applying the legal penalty and exploring the reasonable limit of the standard.Through the study of the controversy of the controversy of Ma Le case,from the theoretical reflection of all cited that the loopholes in the interpretation of this crime a file legal punishment set reasonable.In order to overcome the conflict between the retrial of the Ma'o case and the result of the existing judgment,to solve the problem of the absence of the judicial interpretation of the crime,the plot of the plot and so on,we should combine the development of China's financial practice,increase the use of undisclosed information transaction crime standard of the quantitative limits.And through the insider trading crime with the economic mechanism of comparative analysis,to clarify the standard of the crime to increase the rationality.Using the empirical analysis method,calculate the use of undisclosed information transaction crime criminal case core data,quantify the specific boundaries of this crime standard.