On The Path Choice Of China’s Insider Trading Regulation

Securities market participants,both institutional investors and individuals,have a near-instinctive desire to acquire and use information that is not known to others,thereby creating insider trading.Insider trading undermines the fair order of the securities market and limits the function of capital financing in the securities marketand therefor investors’ confidence in the securities market is weakened and shaken.The foundation of the securities market.In order to effectively combat the insider trading behavior that is lingering like a nightmare,China has gradually formed a regulatory system with the Securities Law as the core,covering basic laws,administrative regulations,departmental rules and self-discipline regulations.However,under the temptation of huge profits,insider trading behaviors are still emerging.In the early days,such as"Zhangjiajie Tourism Development Company Insider Trading Case",in the medium term,"Huang Guangyu Insider Trading Zhongguancun Stock Case",late"Wang Yucheng Insider Trading Han Ding Yuyou Stock Case".Amazing cases continue to torture our country’s insider trading regulations.Throughout the world,regulation of insider trading has become a common policy goal of all countries in the world,and has developed a distinctive regulatory system.Based on the investigation of the practice of insider trading legislation in major countries and regions,the author draws the same conclusions as most scholars,that is,the path of regulating insider trading is mainly the path of faithfulness and market fairness.The two paths were born in different legal traditions and law enforcement environments,so there are significant differences in regulating insider trading behavior,especially in identifying the elements of insider trading behavior.The regulation of insider trading under the path of fiduciary duty focuses on the micro-company interests,requiring the actor to be a specific subject with a fiduciary duty,rather than all the general subjects who use insider information to implement securities transactions,and the scope of regulation is narrow.Since the belief in the path of insider trading restricts insider trading as securities fraud,it requires the actor to have subjective elements of using insider information,which makes it difficult to prove injudicial and law enforcement practice.The market fair path is based on maintaining the fairness of the securities market,insisting on the equality of the securities market entities,and has no special requirements for the main elements of insider trading,thus including all securities market entities in the scope of insider trading regulations.Secondly,the regulation of insider trading under the market fair path only requires the perpetrator to have a subjective understanding of the fact that the information obtained is inside information,which proves that the difficulty is significantly reduced,which helps to improve the efficiency of justice and law enforcement.Although the legislature has not yet expressed its attitude towards the choice of the domestic trading regulation system,by analyzing the provisions of the Securities Law insider trading regulations,the author believes that the legislative system of regulation of insider trading established in China clearly has the color of the path of faithfulness and obligation.The insider trading constitutes a logical mess of elements,and the scope of the coverage is too narrow,causing various problems in applicable practice.The feasibility of transplanting the letter of credit obligation in China lacks the necessary common law foundation and the necessary law enforcement system.The feasibility is debatable.The market fair path has a high universality,centered on behavioral supervision,and is more in line with the practical problems of domestic domestic trading regulation.Abandon the path of faith and obligation,turn to the market fair path,abolish the special identity subject and"use”subjective elements,clarify the objective elements of insider trading and increase the exemption situation,in order to reconstruct China’s insider trading regulatory system,or for the inside of China’s securities market The solution to the dilemma of trading regulation.