Research On The Difficulty Of Identifying The New Types Of Crimes Of Manipulating Securities And Futures Markets

With the development of the capital market and the continuous innovation of scientific information technology,the manipulation behavior in the financial market is becoming increasingly complex and diverse,which seriously undermines the fair competition order in the market and poses significant challenges to the effective supervision of securities and futures.China’s administrative and judicial organs attach great importance to the legal regulation of new types of market manipulation behavior.In 2020,the Criminal Law Amendment(XI)incorporated false declaration transaction manipulation,demagogue transaction manipulation,and "hat grabbing" transaction manipulation into the regulation of Article 182 of the Criminal Law,greatly alleviating the disputes in theoretical and judicial practice.However,there are many problems in judicial identification of new types of manipulation,Further exploration is needed on the difficult issues in its constituent elements,with a focus on reasonably defining the criminal constituent elements such as subject elements and behavioral elements,distinguishing between new market manipulation behaviors and related securities and futures crimes,in order to achieve a reasonable recognition of new types of manipulation behaviors.For false declaration manipulation,although the development of network technology has led to a new trend of procedural and high-frequency manipulation,its objective behavior still does not deviate from the traditional manipulation mode of "false declaration cancellation and reverse trading".In addition,in judicial practice,due to the significant difficulties in directly determining the subjective purpose of the perpetrator,the determination of "not for the purpose of transaction" should refer to certain objective standards and conduct criminal investigations from the behavioral,temporal,and technical levels.For the manipulation of demagogic transactions,although the Criminal Law Amendment(11)removes the requirement of "engaging in relevant transactions or seeking relevant benefits",in reality,this requirement is still necessary when determining that the perpetrator constitutes demagogic transaction manipulation.At the same time,the analysis and determination of "false information","uncertain information",and "significant information" in its "false or uncertain significant information" is also the key to a reasonable understanding and application of this crime;Secondly,demagogue trading belongs to a type of information manipulation,which differs from "hat grabbing" trading manipulation in terms of information authenticity,reverse trading,and inducing investor decision-making;There is a fundamental difference in the authenticity of information between continuous trading manipulation and utilizing information advantages;Finally,compared to the crime of fabricating and disseminating false information in securities and futures trading,which is extremely similar in behavior,there are many differences in objective behavior,crime description,subjective intention,etc.,but the essential difference lies in whether the perpetrator has implemented relevant securities trading or obtained benefits from releasing false information.As for the manipulation of "hat snatching" transactions,public share recommendation and securities trading are important elements of this crime.Since relevant laws and judicial interpretation do not explain public share recommendation,it is worth analyzing what is "public share recommendation";Secondly,the revision of the scope of the subject of this manipulation behavior allows ordinary market investors to also become the subject of this crime,but they should have both corresponding recommending influence and concealing conflicts of interest.At the same time,in order to prevent the occurrence of "accidental injury" phenomenon,corresponding exemption clauses should be considered for non special subjects;Finally,although there are similarities between this manipulation behavior and the objective behavior of insider trading,there are significant differences in the nature,utilization,and trading mode of information.A reasonable clarification of the two crimes can help better regulate the "hat grabbing" trading behavior in the securities market.