| Securities insider trading will disrupt the order of the securities market,strike investors ’ confidence,and seriously damage the stability of the securities market.The prohibition of securities insider trading has become a global consensus.In recent years,in order to effectively combat securities insider trading,China has continuously improved the legal system for the identification of securities insider trading.The new "Securities Law " implemented in 2020 has greatly improved the identification system of securities insider trading.The scope of insider trading subjects and the types of insider information have been modified,which to a large extent makes up for the leakage of the original norms.However,there are still limitations,such as the leakage of the identification of the subject of insider trading,the ambiguity of the identification standard of insider information,the ambiguity of the proof standard of ’ using ’ insider information,and the imperfection of the exemption system.Based on this,it is necessary to improve the legal system for the identification of securities insider trading.The basic theory should be taken as the breakthrough point for research.The theory of fiduciary relationship and the theory of information equality are the theoretical basis for the identification of securities insider trading.On the basis of objective analysis of the advantages and disadvantages of the two theories,combined with the current status of our securities market and the legal basis,we should find out the theoretical basis for identifying insider trading that can be applied to China,that is,the dual theory of information equality theory and fiduciary relationship theory should be used to improve the insider trading identification system.After that,it is necessary to analyze the experience of extraterritorial securities insider trading identification for our reference.The EU and the United States are representative countries and regions that apply the theory of information equality and the theory of fiduciary relationship.After a comparative analysis of the relevant legal systems,it can bring some thoughts to China’s improvement of the legal system for the identification of securities insider trading.Finally,in view of the problems existing in the identification of securities insider trading in China,this paper puts forward countermeasures and suggestions,and improves the relevant legal norms of the identification of securities insider trading.In terms of subject identification,based on the theory of information equality,the legislative scope of the subject of securities insider trading is reconstructed.Then,the method of distinguishing information sources by the theory of fiduciary relationship is used to classify the subjects of securities insider trading,and different ’awareness’ identification standards are set for different subjects to increase the operability in practice.In the identification of insider information,it is suggested that the two-element theory should be used as the basis for the identification of insider information.In improving the criteria for determining the significance of insider information,it is necessary to use the subjective price sensitivity criteria as the main and the rational investor criteria as the auxiliary.In improving the non-publicity standard of insider information,it is necessary to focus on the formal disclosure standard and supplement the substantive disclosure standard.On the issue of the standard of proof of ’using’ insider information,it is suggested to introduce the ’presumption ’ rule to improve it.And establish the proof standard of presumption’using’.In view of the problems existing in the exemption mechanism,we should learn from foreign experience to improve the type of exemption of securities insider trading and set up the implementation elements of exemption. |
