Research On The Identification Of Securities Insider Trading Subjects In China

Since the inception of the securities industry,it has been accompanied by the phenomenon of insider trading.As the securities market continues to grow throughout the world,insider trading is more frequent.Since my country’s "Securities Law" was enacted in 1998,insider trading,which disrupts market order,has been strictly prohibited.Insider trading harms the interests of uninformed investors,undermines investors’confidence in the securities market,undermines market fairness,and affects economic development.Although my country’s legislative system does not clarify the constituent elements of insider trading,it does define the scope of the subject of insider trading.The newly revised Securities Law in 2019 generally follows the classification of insider trading entities in the old law and further expands the scope of the subject of insiders,but it has not further elaborated on the scope of persons who illegally obtain insider information.The identification of the subject of insider trading is related to the assumption of the subject’s legal responsibility.The ambiguity at the legislative level has caused law enforcers to be inconsistent when identifying the subject of insider trading.Clarifying the scope of insider trading entities can reduce the difficulty of the law enforcement agencies to prove the insider trading entities and enable the law enforcement agencies to accurately identify insider trading entities.At the same time,a clear legislative language can prevent law enforcement agencies from making too many breakthrough open interpretations when interpreting the law.In order for law enforcers to properly handle insider trading activities in accordance with the new "Securities Law"and make a purpose-fitting interpretation of insider trading entities,it is necessary to combine legal norms,relevant theories and law enforcement practices to reconstruct the identification standards of insider trading entities,and then regulate them New insider trading entities are constantly emerging in the securities market.The full text is divided into four parts:The first part summarizes the status quo and predicaments of the identification of the subject of domestic transactions in our country.In the current legislative rules for the identification of the subject of domestic transactions,the lower law conflicts with the upper law,and the inconsistency of the subject’s terminology leads to disputes over the scope of the subject.In the practice of law enforcement,the China Securities Regulatory Commission has identified increasingly diversified insider trading entities as vague and frequently used the general provision.It is difficult to form a logical analysis and reasoning for insider trading entities other than the typical entities identified.The second part introduces the theoretical basis of the identification of insider trading entities.It focuses on the development process of case law in the United States on the subject of insider trading.So far,it still mainly adopts the theory of fiduciary duty,which derives the theory of information equality,the theory of fiduciary duty,and the private theory and the theory of fiduciary duty that are further improved on the basis of the theory of fiduciary duty.The theory of messaging responsibility.The theory of fiduciary duty means that only the subject with fiduciary duty can become the subject of insider trading.The European Union law was influenced by the American law,initially based on the theory of fiduciary duty,and later turned to the theory of information equality.In the theory of information equality,whether a subject has a fiduciary duty is not necessarily related to whether it becomes a subject of insider trading.The third part analyzes the theoretical choice of the identification of the subject of domestic transactions in our country.The current legislative rules express different theories on the subject of insider trading.The identification of the subject of insider trading can be divided into the theory of fiduciary duty based on the identification standard of special status and the theory of information equality based on the identification standard of behavior,corresponding to the special subject approach and the general subject approach in the legislative rules.Clarifying the pros and cons between the two standards is conducive to dissecting the connotation of insider trading entities.The fourth part,on the basis of exploring the current legislative rules,reconstructs the identification standards of insider trading entities.The new "Securities Law" regards the subject who can obtain inside information by virtue of its work position and control relationship as the insider of inside information,and leaves the legislation blank.Therefore,when making judgments,the law enforcement agencies also need to pay attention to maintaining consistency with the preceding clauses,and cannot make analogy interpretations.In addition to the above-mentioned subjects,it is also necessary to further classify those who illegally obtain inside information according to whether they have used illegal means to obtain inside information.At the same time,the legal responsibility of subjects who accidentally obtain insider information is excluded.Reconstructing the identification standards of insider trading entities can effectively coordinate the conflicts between the legislative and law enforcement levels,rationally allocate the burden of proof between law enforcers and parties,better regulate insider trading behavior,and promote the healthy and orderly development of the securities market.