Research On The Definition Of Subject Of Liability Insider Trading

Insider trading is a kind of illegal behavior in the securities market,which is harmful and large in quantity.It disturbs the economic order of financial market seriously.The securities law explicitly prohibits insider trading and enumerates the subject categories of insider trading.In order to prevent the incompleteness of the law and to deal with the changes of the social situation,the inside subject has been set up a bottom-hunting clause,which stipulates that the securities regulatory agency under the State Council authorizes the CSRC to make a determination.After the CSRC adopted the presumptive method for the determination of insider trading,the number of cases increased dramatically,and the subjects of insider trading who were punished were increasingly diversified.The study of the scope of the subject of insider trading,its applicable theory can not be ignored.By consulting the administrative penalty decision issued by the official website of the CSRC,this paper analyzes the law enforcement data and cases,and discusses the choice of imputation theory of insider trading and the perfection of the rules of the CSRC law enforcement cognizance.In addition to the preface and conclusion,there are four chapters in the main body of this paper.The first part,the current situation and reflection of the CSRC’s law enforcement.By combing the data of the administrative penalty decision of the CSRC from 2010 to 2020,it is found that since 2012,the number of insider trading cases has increased,the proportion of people who illegally obtain insider information has increased year by year,and the subjects have become increasingly diversified,the number of penalties imposed by information recipients is greater than that imposed by information transmitters.The listing of insider trading subjects in the securities law shows obvious identificationism,but the law enforcement does not reflect this legal standard,and the cases of suspected insider traders identified by the bottom-covering clause used by the CSRC in law enforcement are numerous,moreover,the conclusion indicates that there is a vague condition,which can not authenticate the identity of the subject.The reason for this lies in the lack of a clear understanding of the regulatory objective in legislation,and the contradictory theoretical basis of imputation exists in the legal texts,which can not provide the CSRC with a clear regulatory objective for dealing with insider trading cases so as to determine the standard for the identification of the subject,there is a conflict between legislation and law enforcement.The second part is about The difference between the theory of imputation and the introduction of legislation and the identification of constitutive requirements in different countries.In theory,there are two kinds of imputation theory of insider trading: the theory of specific relationship and the theory of perfect market.The theory of specific relationship is related to anti-fraud,with the link of fiduciary duty,The Fiduciary Duty Theory,The Misappropriation Theory and The Tippee Liability Theory have been developed gradually.The sound market theory is based on the market,with the aim of safeguarding the market fairness and protecting the investor confidence,and develops The Equal Access to Information Theory by regulating the subjects who hold inside information at will and guaranteeing the market in an all-round way.There are differences between the two kinds of theories in the cognizance of constitutive elements.The third part,The theory of imputation subject’s definition is mixed and the constitutive elements are fuzzy.The new “Securities Law”continued the2005 version of the “Securities Law”insider trading subject categories,and increased.On the one hand,article 51 of China’s current “Securities Law”enumerates the insiders in detail,the theory of which is The Fiduciary Duty theory,as well as The Misappropriation Theory is the theory of the person who illegally obtains the inside information,which is expressed in Article 50,it shows that “Securities Law” in a specific relationship under the way,the obligations of trust as the link,the main identity of the dominant to determine whether it belongs to the insider trading of this position.But for the multi-level transfer of the case to solve the lack of The Tippee Liability Theory of reasoning guidance,there is a lack of law enforcement on the information carrier problem.On the other hand,the enforcement data of the CSRC and the administrative penalty decisions indicate that the judicial system’s trial practices,including the Identification guidelines and the Judicial interpretation,all indicate that all the people who know the inside information and trade are classified as the subject of the inside trade,and the regulatory approach is the sound market approach.However,the uncertainty of presumption means,the existence of improper expansion of the main scope of the problem.The different theoretical support and projection of the current norms make the conflict between legislation and law enforcement difficult to regulate insider trading.In the fourth part,the author confirms the imputation theory under the specific relationship approach and puts forward some suggestions to improve it.After analyzing the crux of the problem,the single imputation theory of choosing a particular relational approach is confirmed.First of all,on the protection of legal interests,the legal interests of insider trading of securities should be represented as the economic interests of the main body of the securities market.Secondly,in terms of the applicable environment,considering the path dependence of the construction of the legal system and the sunk cost,as well as the practical requirements,through the comparison of the two theories,the specific relationship approach is more suitable for the current needs of developing financial economy in China.Therefore,on the basis of the choice of specific relationship approach,the author suggests adopting the identity-identifying principle with the link of fiduciary duty to define the subject of insider trading,based on the different ways of obtaining inside information,the subject has different responsibilities,and the presumption of law enforcement,the subject’s identity to prove the degree of rigor,improve the exemption system.