Research On The Judicial Application Of The Crime Of Insider Trading And Disclosing Insider Information

On February 17,2023,after four years of continuous pilot and reform,China ’s stock issuance registration system was formally and fully implemented.It explored and formed a registration system framework with information disclosure as the core,market-oriented institutional arrangements,open,transparent and predictable audit registration mechanism,which is in line with China ’s characteristics and facts.This is a landmark major change involving the overall development of the capital market.At the same time,in order to follow the information disclosure as the main line,and then make the approval system to maximize the conversion of the issuance conditions to the registration system framework required for information disclosure,in the middle end to strengthen the information disclosure supervision of listed companies,improve the trading system,establish a diversified and normalized delisting mechanism;it is necessary and urgent to study the judicial application of securities crimes,especially insider trading and disclosure of insider information crimes,under the background and requirements of constantly strengthening market-oriented constraints and rule of law constraints,constantly improving the administrative law enforcement and criminal justice system and mechanism to crack down on securities illegal activities,and severely cracking down on securities fraud and other illegal and criminal acts.In the process of cracking down on insider trading and leaking insider information crimes,the premise and basis of judicial application is to identify the insider information,objective behavior,subject of this crime and the illegal circumstances of this crime,especially the identification of illegal income.Without the accurate identification of the relevant elements,there is no precise judicial application.This paper systematically analyzes the judicial determination of insider trading and the crime of leaking insider information in China ’s practice and the long-standing disputes and problems in reality.Combined with relevant classic cases,this paper analyzes and discusses the identification rules of the relevant constituent elements of this crime in judicial application,summarizes and summarizes the relevant problems existing in the judicial application of this crime in China,and studies the relevant theoretical viewpoints and judicial precedents of foreign countries and regions,and puts forward corresponding suggestions for improvement.Around this idea,the full text is divided into six parts.The first part : introduction.Firstly,it introduces the research background and significance of the topic,introduces the establishment background and legislative regulation of the crime of insider trading and disclosure of insider information in China,as well as the research status,research methods and innovation points of the judicial application of the crime of insider trading and disclosure of insider information in China.The second part : the problems existing in the judicial application of the crime of insider trading and disclosure of insider information.This part specifically analyzes the crime of insider trading and disclosure of insider information in the judicial practice of our country,which is caused by the low standard of legal retroactive incrimination,the relative singleness of legal punishment and the lack of refinement of punishment,the inconsistency of judicial identification standards in the practice of the elements of criminal constitution,and the large number of crimes in this crime,the difficulty of accountability,and the serious imbalance of the proportion of criminal acts incrimination,which seriously hinder the judicial application of this crime.The third part : the analysis of the causes of the judicial application of the crime of insider trading and disclosure of insider information.This part specifically analyzes the reasons for the problems existing in the judicial application of insider trading and the crime of leaking insider information in China,and discusses in detail the obstacles in the application of law due to the current lack of legislation at the relevant level.The judicial response system and mechanism for covert and complex insider trading behavior and leaking insider information behavior are not perfect and optimized.At the same time,the professionalism of this crime leads to difficulties in investigation and evidence collection,and the efficiency of administrative law enforcement and criminal justice needs to be improved,which also includes substantive law.It is mainly reflected in the fact that the standard of conviction is too low,which leads to the occupation of criminal justice by administrative law enforcement and the overhead of judicial practice.In terms of procedural law,it is mainly reflected in the fact that there are many principled provisions on the connection of relevant executions,fewer operational rules and the lack of supervision by procuratorial organs.In practice,the reasons for the longterm disputes,and in-depth research on the corresponding problems and causes and put forward solutions and improvements.The fourth part : the judicial determination of the elements of the crime of insider trading and disclosure of insider information.This part discusses and analyzes the judicial determination of the relevant elements of the crime of insider trading and disclosure of insider information.In particular,it analyzes the identification of the "significant influence" and "undisclosed" characteristics of insider information;discuss the "relevance" and "certainty";and the judgment of the formation time of insider information in the sensitive period of insider information and the rules of formal disclosure and substantive disclosure of insider information are analyzed.To define the objective behavior of insiders engaged in or recommending others to engage in insider trading,passing on inside information;the general rules of judicial presumption are discussed from the identification of the behavior types of obvious abnormalities in related transactions.It also studies the punishability of acts such as "omission" and "information mining".On the subject,the evolution process of the subject imputation theory such as "trust obligation theory," "private internal theory" and "embezzlement theory" is combined to discuss the imputation scope of the legal insider trading subject in China and the composition of joint crime.At the same time,it defines and discusses the criminal liability of the subjective intentional identification rules of using insider information and the criminal liability of negligent disclosure of internal information and object cognition errors,and combines the relevant scholars at home and abroad and foreign judicial practice to identify the relevant elements of this crime.The frontier theoretical viewpoints and advanced practices are analyzed in order to explore the relevant identification rules and theories that are more in line with the actual situation in China.The fifth part : the identification of the crime of insider trading and disclosure of insider information in judicial practice.This section mainly studies the circumstances of the conviction and sentencing of this crime one by one,and analyzes the serious(special)circumstances;the cumulative calculation rules of the amount of insider trading,especially the determination of the amount of profit and loss of insider trading in illegal income;multi-level transmission of insider information,insider trading behavior of the amount of crime approved rules,the amount of profit of the accomplice and the application of the fine penalty for this crime,especially the application of the fine penalty for joint crime;in the case of non-accomplice,the fine type is applicable to insider information leakers and express and implied personnel;the application of the fine penalty in the case of non-profit and non-avoided losses and the understanding of the reasons for the obstruction of the crime of this crime,that is,the analysis of the provisions of the relevant defenses,especially the practical judgment of the defense of the default transaction plan and the risk of abuse,etc.The relevant factor identification rules that have attracted much attention in practice are analyzed.The sixth part : the analysis of insider trading,the crime of divulging insider information and related charges.According to the complexity of financial securities crimes and the difficulty in defining the key elements between related crimes in practice,this chapter analyzes the crimes that are related to this crime and have similar characteristics and elements.This mainly includes the crime and the crime of infringing trade secrets,the crime of using undisclosed information to trade,and the crime of manipulating securities and futures markets,in order to maximize the application of this crime in judicial practice.More accurate and efficient.Finally,the paper summarizes the views of the article in the conclusion part.In order to promote the establishment of a more scientific and complete legal system in China ’s capital market,a more perfect securities law enforcement and judicial system with Chinese characteristics,and then promote the transparency and standardization of securities administrative law enforcement and criminal justice.