Research On The Identification Of Manipulating Market By Using Information Privilege

With the development of the informatization of security market,market manipulation has gradually shifted from transaction-based manipulation to information-based manipulation.As a sub-category of information manipulation,the issuer’s directors,supervisors,senior managers,actual controllers,and controlling shareholders(hereinafter referred to as "insiders")collude alone or with external institutions and personnel,and through planning false and uncertain It has become more and more common to control the generation of company information or control the content,timing and pace of information disclosure,and use the information advantage of insiders to manipulate company securities,and has been listed as a typical law enforcement case by the China Securities Regulatory Commission for many times.However,such manipulation has not been clearly listed in the newly revised Securities Law,thus leaving a difficult problem for anti-manipulation supervision.In addition,manipulation based on information privilege to has the characteristics of unclear subjective intention,concealed means,and complex causal relationship.In the process of investigation and punishment,the regulatory authorities lack a clear behavior identification framework and uniform law enforcement standards.In a word,the behavior of manipulating the market by using the privilege of information occurs frequently,and there is a real need to regulate it.However,due to the lack of existing rules and the vague nature and hidden means of such manipulation,law enforcement and judicial departments face multiple difficulties in the identification process.In this regard,this paper proposes and attempts to solve the two problems of the necessity of independent regulation and the requirements of behavior identification by using information privilege to manipulate market behavior.Market manipulation based on information privilege is not clearly listed as an independent type of manipulation by the Securities Law,and this expression mainly comes from the regulatory practice in recent years.However,the relevant provisions on the crime of market manipulation in the criminal field of our country have described this kind of behavior in detail.There are indeed similarities between market manipulation based on information privilege and other securities violations,and whether it is necessary to recognize its independence is highly controversial.Through the comparative analysis method,this paper carefully compares the elements of this kind of manipulation and other similar securities violations,and proves that market manipulation based on information privilege has unique and illegal characteristics,and it is necessary to regulate and state it separately in legislation.Considering the difficulty of directly revising the Securities Law,it is suggested that the CSRC should issue departmental regulations to supplement the “other means of manipulating the securities market” in the Securities Law,and incorporate the use of information privilege into the regulatory framework of the Securities Law.The identification of market manipulation based on information privilege not only requires a clear legal basis,but also requires a clear and complete identification framework and argumentation ideas.Combining theory with practice,this paper decomposes the elements of manipulating market behavior by utilizing information superiority layer by layer,and discusses it step by step.As for the subjective elements,this paper discusses its necessity,controversy and identification difficulties,and proves that the manipulation intention is the key to the characterization of illegal acts and the restoration of the complete manipulation chain.And by examining the experience of law enforcement and justice outside the territory,it sorts out and summarizes the past anti-manipulation supervision practices in our country,and proposes an operable subjective proof path.Aiming at the objective elements,this article disassembles them into three elements: "information","information privilege" and "utilization" for analysis.The three criteria for identifying "information" are clarified,the two major manifestations of "information superiority" are expounded,and the common information control methods for this kind of manipulation are listed in a typified manner.As for the result element,the article analyzes the dispute of the existence or abolition of the result element theoretically,and analyzes the causal relationship and the identification dilemma of the result element from the practical point of view.Applying the traditional result element theory to the new type of manipulative behavior is actually cutting one’s feet to fit one’s feet.It is suggested to find another way to redefine the result of using information advantage to manipulate the market behavior as "the possibility of affecting the price and volume of securities transactions",so as to transform the technical identification of actual harm results into value judgments about the risk of behavior.