| If the investment activities in the securities investment market are compared to war,the modern securities investment activity is undoubtedly an information war,and the undisclosed information is the key to the information war.As long as we grasp the undisclosed information related to the transaction,we can win the competition in the capital market with the advantage of asymmetric information.When the criminals master the undisclosed information through various ways,the information asymmetry between investors will be caused by the investors,and the consequences caused by this asymmetric information will have social harmfulness.The behavior violates the legitimate rights and interests of the investors,and it also hinders the healthy and orderly development of the financial industry in our country.Social contradictions lead to various social security problems.Therefore,through the amendment of the criminal law(seven)in February 28,2009,the 180 th article of the criminal law has been amended and fourth sections have been added,which will make use of undisclosed information trading and serious circumstances to make use of the crime of undisclosed information.However,there are still some problems in this crime,such as unclear concepts and blurred boundaries.The incidence of undisclosed information transactions has not been significantly reduced.It is necessary to deeply analyze the theoretical connotation and practical limits of the constitutive requirements of the crime.This article is divided into four chapters.The first section of the first chapter first analyzes the connotation and characteristics of undisclosed information,and summarizes and generalizes some views of the theoretical circle,and concludes that the characteristics of undisclosed information are mainly non insider,objectivity,undisclosure and price sensitivity.After summarizing the characteristics of the undisclosed information,the scope of the undisclosed information is further defined,and the undisclosed information is four categories,namely,the trading information,the Futures Company,the securities Futures Company assets management business or the investment consultation business.The decision-making information and regulatory departments or industry associations of the gold management agencies or units carry out all kinds of information produced in the process of administrative law enforcement or industry management,such as regulatory information,policy information and so on.Finally,it distinguishes the difference between the undisclosed information and the insider information.The insider information directly reflects the various conditions of the listed company,the undisclosed information has no direct connection with the listed company;the inside information is the information that must be open after a certain time,and the undisclosed information is not restricted by the rules that must be open;the inside information is often already Facts and undisclosed information can be either real or probable information.The second section analyzes the objective behavior of the crime.It first discusses whether the act of revealing the undisclosed information is a crime.When the perpetrator leaks the relevant information to be pertinent,that is,the disclosure of undisclosed information to a particular person or the crowd should be identified as a crime,and the opposite person does not reveal to a specific person dark.It is not a crime to urge them to carry out relevant transaction activities.Secondly,it analyzes the four academic views on the nature of the relative party behavior that is implied and implied in the related transactions,and finally demonstrates that the person who has the identity belongs to the indirect principal and the non identity belongs to the accessory.Finally,after analyzing the connotation and standard of "duty convenience",after summarizing and analyzing various views on "duty convenience" in the academic circle,the author has drawn four "duty convenience" criteria,which are indispensable.The actor must have the qualifications and ability to contact information;the actor's access to information is in the process of audits,formation and disclosure of undisclosed information;"the convenience of the job" must require the perpetrator to hold the meaning of his own behavior.The second chapter,from the perspective of judicial practice,discusses the existence of the sentencing circumstances in which the "plot is particularly serious" in the use of undisclosed information transactions.The supreme law issued a guide case No.61 to establish a sentencing plot "particularly serious in the plot",but the theoretical circle remains "particularly serious in the plot".The reasonableness of the circumstances of the sentencing is questionable,and the author tries to analyze from two angles of judicial interpretation and system interpretation.In 2010,the most high inspection and the Ministry of public security of the Ministry of public security and the "insider trading interpretation" jointly issued by the supreme law and the highest inspection in 2012 jointly issued by the Ministry of public security and the supreme law and the highest Procuratorate in the 2010,are responsible for the use of the crime of undisclosed information and insider trading,The crime of disclosing insider information is consistent in the standard of determining the magnitude of the sentencing of "serious plot".Therefore,it is proved that the social harmfulness of the two crimes is also generally consistent,so the crime of using undisclosed information transaction should be like the crime of insider trading and disclosure of insider information.Then,from the point of view of the system interpretation,when the domestic penal code adopts the method of invoking legal punishment for the punishment of related criminal acts,when determining the amount of the legal sentence,it should be based on the legal sentence implementation judgment stipulated in the provisions of the law,rather than the expression of the constitutive requirements of the criminal constitution based on the provisions of the criminal law.Judgment is made,because the provisions of the criminal law of China stipulate that all the statutory sentencesquoted by the cited articles are not merely invoked the basic sentencing range.At the same time,it also involves the range of sentencing involved in the crime of insider trading.Therefore,the "serious circumstances" is the aggravated sentencing range of the crime of making use of undisclosed information.The third chapter first discusses whether the turnover should be calculated.Through an example,we demonstrate that the cumulative calculation of the buying amount and the selling amount of the procuratorial organs in the "Zhang Zhimin case" and the "Luo Mou case" is supported by the court,demonstrating that the cumulative calculation of the turnover is precedent in the judicial case.By pointing out that the eighth article of "insider trading interpretation" clearly stipulates that the perpetrator will carry out more than two insider trading actions,if it is not punished by administrative or criminal punishment,the amount of the related transaction should be calculated according to law.It is demonstrated that cumulative calculation of transaction volume is also stipulated in judicial interpretation level.Thus,it is proved that the volume of transaction in the crime of using undisclosed information should be accumulated.Secondly,after the analysis of the low standard of crime entry and its disadvantages,the reconfiguration of the amount standard of the crime of using undisclosed information is carried out,and the statistics are made through the statistics of the case of the crime of using undisclosed information after the publication of the criminal law amendment(seven).The statistics of the volume of transaction and the amount of profit are obtained.The form is the quantitative analysis of the statistical tables.Finally,the author provides a specific amount of sentencing proposals for the "serious plot" and "the serious plot" of the crime.The fourth chapter,first of all,demonstrates from three angles that "profit" is not a constituent element of the crime of undisclosed information.Secondly,how to judge whether there is a relationship between the transaction activity and the undisclosed information in three aspects: how to judge "early",how to judge "the same period" and how to judge the transaction variety.Do research.It is concluded that in the same period,a financial institution refers to the activity of buying or selling the samefutures or stock in the same market,which occurs in a financial institution for several trading days within the same day or after the same day,and there are no less than two trading days for several trading days."The same stock" requires that the stocks that are judged to be traded belong to the same company and share the same market. |
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