Research On The Difficult Problems Of Joint Crimes In The Securities And Futures Field

Crimes in the financial field have the following main characteristics: strong professionalism,high linkage,more complex behavior,and more hidden technical means.In recent years,with the continuous expansion of my country’s securities and futures markets,many people,in order to obtain illegitimate benefits,use financial advantages,technological advantages and other relatively hidden means,under common intention,through multi-level and multi-link division of labor,Cooperation and the implementation of joint financial crimes frequently occur.This article intends to start with the joint crimes in the field of securities and futures,with the crimes of insider trading and leaking inside information,the crime of trading with undisclosed information,and the crime of manipulating the securities and futures markets.These three crimes will be used as the fulcrum for the study of joint crimes in this field,with a view to solving the difficult problems in joint crimes in this field are helpful.This article is divided into three parts.The first part analyzes the difficult issues in the identification of joint criminal subjects in the field of securities and futures.In the crime of using undisclosed information to trade,because the general subject has already enjoyed the benefits that only the special subject can enjoy when the general subject executes the related transaction jointly with the special subject.Moreover,my country’s criminal law and related judicial interpretations also have precedents that general subjects can form accomplices with special subjects,so general subjects can be accomplices of the crime.Only because the act of committing this crime can only be carried out by a special subject,the general subject cannot be convicted of committing the crime.In the "rat warehouse" case,the person who built the warehouse was not an indirect principal offender,and the relationship between the person who built the warehouse and the "rat" was not exploited and exploited.The "rat" has its own independent will and consciousness and can independently decide whether to participate in the "rat warehouse".Therefore,the special subject in the "rat warehouse" case does not constitute an indirect principal offender.The accomplices of the crimes of manipulating the securities and futures markets can all be general subjects,because the essence of market manipulation is "using advantages" rather than "using information." In joint crimes involving units in the field of securities and futures,due to the duality of the identity of the unit’s supervisors,their actions are correspondingly dualistic,so the unit and its internal supervisors can form joint crimes.Although such a determination will result in a breakthrough in the concept of "the same kind of multiple crimes cannot be punished at the same time",this breakthrough is based on the principle of statutory crimes and punishments and reflects the adequacy of criminal law evaluation.The statutory penalty for unit crimes in the securities and futures field should further widen the gap with the statutory penalty for crimes committed by natural persons.The current trend of converging the statutory penalty for unit crimes with the statutory penalty for crimes committed by natural persons is not the correct orientation.In the field of securities and futures,when it comes to the punishment of units involved in joint crimes,the concept of "light punishment" must be fully implemented to further stimulate market vitality and ensure the sustainable development of the securities and futures markets.The second part discusses the difficult issues in the identification of one-sided accomplices in the securities and futures field.Adopting a one-sided accomplice "affirmation" is conducive to making up for the loopholes that may be triggered by the huge and complex securities and futures markets for helpers to evade criminal sanctions.However,there are certain limitations in the application of the theory of one-sided accomplice in this field.If the civilized provisions of the criminal law provide for "collusion" or a joint crime that can be formed by some special subjects and general subjects based on instigation and prior conspiracy,it is necessary to exclude one-sided accomplices.Application of theory.Because the first act of the crime of manipulating the securities and futures markets may have one-sided accomplices in reality,the term "collusion" stipulated in the first paragraph literally limits the scope of application of joint crimes.However,judging from the essential characteristics of the crime,the crime of manipulating the securities and futures markets does not provide the possibility for the conviction of a joint crime because it emphasizes "collusion",even if it does not emphasize "collusion," when it meets the constitutive requirements of a joint crime the accomplice of the crime is of course convicted.The term "collusion" may create obstacles to one-sided accomplices in the conviction of the crime,which needs to be amended.The third part explains the difficult problems encountered when identifying typical behaviors in joint crimes in the field of securities and futures.First of all,in terms of explicit and implicit behavior,it is believed that both "bright" and "dark" modify "information".The difference between "bright" and "dark" lies in the difference in the way of expressing suggestions.Explicit behavior and implied behavior are based on "transaction." Discuss whether the proposer and the adviser who implemented the explicit or implied behavior constitute a joint crime can be divided into four specific situations based on the express or implied behavior of the adviser and whether the adviser performs the relevant transaction.Second,regarding the act of leaking information and the act of receiving information,it is believed that the “information”in the act of leaking information should be distinguished between “inside information”and “undisclosed information”.Since the original intent of the legislation does not include the disclosure of undisclosed information,and the importance of undisclosed information is not as important as inside information,the disclosure of undisclosed information cannot be regarded as a crime.Regarding the question of whether the party who leaked the information and the party who received the information constituted a joint crime in practice,whether the party who received the information actively requested or passively obtained the information should be used as the criterion for classification.Finally,for the follow-up behavior in the crimes of manipulating the securities and futures markets,it is believed that whether the follower and the perpetrator have a conspiracy should be used as a criterion for dividing whether the two parties constitute a joint crime.Regarding the market value management behavior,it is considered that the behavior is a legitimate and legal stock price increase behavior implemented by the company for strategic adjustment and other purposes and cannot be regarded as a joint crime.Regarding the act of providing an account for the perpetrator to commit crimes of manipulating the securities and futures markets,whether the account provider knows that the perpetrator plans to implement the intention of manipulating the securities and futures markets is used as a criterion to distinguish whether it constitutes a joint crime.Judging whether the account provider knows it or not,it needs to be comprehensively considered in light of the social background,the educational level of the account provider and other factors.