| Under the background of the comprehensive registration system reform,there are more and more integrity problems in the process of securities issuance,and fraudulent issuance of securities has emerged.The Criminal Law Amendment(11)responded positively to this,raised the statutory maximum penalty and fine penalty changed from percentage to unlimited amount,increasing the crackdown.However,in sharp contrast to the active legislation,the application rate of this crime in judicial practice is very low.An important point is that the behavioral elements of the crime of fraudulent issuance of securities have become more open and flexible,resulting in many ambiguities in understanding and application.It needs to be clarified urgently,among which the ambiguity of behavioral elements is particularly prominent.Therefore,it is necessary to use the methods of normative analysis,theoretical analysis,and empirical analysis to understand the objective aspects of the crime in detail,so as to scientifically and reasonably grasp the constitutive elements of the crime and improve the accuracy and validity of the judicial application.Difficult issues in the objective aspects of the crime of fraudulent issuance of securities,including but not limited to four aspects: determination of the fraud behavior,issuance behavior,fraudulently issued content,and distinction from other crimes from the objective aspects.In the determination of fraud,for the carrier "other issuance documents",according to the principle of unification of legal order,the theory of legal interests,and the situation of severe legislative crackdowns,it should not be limited to the documents stipulated by law.It should be flexibly determined according to the followed double standards: the necessity of applying for issuance and the normativeness of general rational investors’ judgment and decision-making,including financial accounting reports and relevant documents such as legal opinions stipulated by the CSRC or the departments authorized by the State Council;as for the nature of the means,with the help of pre-requisite securities norms and the legal benefits of this crime,the nature of fraud should include breaching of information disclosure obligations and being enough to mislead investors to make wrong judgments.In the determination of issuance,according to the definition of the act of execution,substantive objective theory about the commence and using the system interpretation,the status of the system of issuance is clear,that is,issuance and fraud are both the implementation of this crime,and the two are in a parallel relationship;based on the provisions of the Securities Law,the theory of fulfillment requirements as well as the composition requirements,the connotation of the "issuance" should be reinterpreted as the actual issuance;as for the securities to be issued,taking the text as the boundary and the legislative purpose as the selection criteria,bonds issued privately are necessary for criminal regulation,for the newly added "depository receipts",relying on the relevant documents of the State Council to distinguish them from traditional stocks and bonds,and clarifing the points that need special attention when making identification,for "other securities",first of all,from the perspective of the normative text,it should not be directly applicable to the Securities Law,it will be confirmed by the State Council through legal procedures.In addition,it should have the essential characteristics of securities such as standardization,tradability,risk of price changes,and other income generation,and finally combined with the specific circumstances of this crime,the issuer is not a state,and has administrative compulsory obligations in securities issuance and information disclosure.In the identification of fraudulent distribution content,at the macro level,by referring to the relevant theories and practices in and outside the domain,combining the provisions of the Criminal Law Amendment(11),the Securities Law,theories such as the clarity of the crime and punishment,the efficient market hypothesis,"standard of affecting securities prices" should be selected,which should be used in the form of behavioral judgments from the perspective of general rational investors.It should also be flexibly applied to companies in different growth stages.At the micro level,for subjective information with the nature of evaluation and prediction,the necessity of criminal regulation needs to be comprehensively judged based on subjective and objective circumstances.For voluntarily disclosed information,considering that the criminal law should carefully intervene in economic activities,it should not be included in the scope of criminal regulation.Finally,there is a dividing dilemma in the objective aspects between the crime of fraudulent issuance of securities and the crime of illegal disclosure or non-disclosure of important information,the crime of fabricating and disseminating false information on securities and futures trading,the crime of unauthorized issuance of stocks or corporate bonds,and the crime of illegally absorbing public deposits,which needs to be analyzed.Among them,it has an inclusive relationship with the crime of illegal disclosure or non-disclosure of important information,applying the handling rules of overlapping laws and regulations;it differs from the crime of fabricating and disseminating false information on securities and futures trading in the time,content and nature of the act itself;the difference between it and the crime of unauthorized issuance of stocks or corporate bonds is whether the procedure of the issuance is legal;the standard of demarcation between it and the crime of illegally absorbing public deposits is the way of collection and distribution,and the two crimes have a special and general relationship. |
