| Insider trading is a frequent illegal act in the traditional securities field,with great harm and strong concealment.Therefore,it has always been a key target for securities regulatory agencies to crack down on.The field of financial law also pays special attention to the issue of insider trading.Compared to the securities market,China’s futures market is relatively small and started relatively late,and the process of legalization is relatively slow.Therefore,there are certain deficiencies in the identification and theoretical research of insider trading in the futures market.Prior to the promulgation and implementation of the Futures and Derivatives Law last year,the identification norms were mainly stipulated by the Regulations on the Administration of Futures Trading and the Criminal Law.Both the content of the above-mentioned normative documents and the enforcement practice of futures insider trading cases have reflected the continuation of the relevant norms of the original securities market.As financial markets,securities markets and futures markets differ in market logic,market functions,and price formation.Therefore,this article will analyze the current situation of the regulation and identification of China’s futures insider trading system,analyze the problems existing in the identification of existing insider trading entities,and compare the differences between futures insider trading and futures insider trading in the identification of entities.On this basis,it will study the theoretical basis of futures insider trading regulation,summarize and draw on the beneficial experience of the United States futures insider trading system,and propose the concept of improving the identification of futures insider trading entities,To provide institutional guarantee for the high-quality development of China’s futures market.The main body of this article includes the following four chapters:The first chapter combs out the current futures insider trading system norms in China,and generally draws on the relevant provisions of the securities market.Although some changes in the Futures and Derivatives Law compared to the Regulations on the Administration of Futures Trading reflect the consideration of the specificity of the futures market to some extent,there are no further provisions that clarify the substantive differences between futures insider trading and securities insider trading.At the same time,there is only one law enforcement case in China’s market,and the judicial case is even more blank.In the analysis of the only Everbright Securities insider trading case,it is found that China’s administrative and judicial authorities have adopted the same standards as the securities market when identifying futures insider trading,ignoring the specificity of the futures market.Finally,it points out the shortcomings of China’s existing futures insider trading norms in the identification of the main body.Therefore,it is necessary to fully consider the particularity of the futures market and improve the identification criteria for the subject of insider trading in futures.The second chapter first analyzes the particularity of the futures market.There are significant differences between the futures market and the securities market in terms of market logic,market functions,and price formation.At the same time,starting from the comparison of insider information in the futures market and the securities market,this paper analyzes the differences in the identification of the two entities,and sorts out the types of futures insider trading entities.Secondly,based on the analysis of the existing theoretical basis for insider trading regulation,the traditional theory of trust obligation in the securities market cannot be applied due to the absence of information disclosure obligations in the futures market.Although the market transaction fairness pursued by the information equality theory is also the value pursuit of the futures market,it is not conducive to the realization of the price discovery function of the futures market.The embezzlement theory has realized the expansion of the source obligation of the trust obligation theory,The ability to regulate insider trading in futures without affecting normal futures hedging transactions can be applied to the futures market.The third chapter summarizes the beneficial experience that China can learn from by combing the development and enforcement of the insider trading system in the US futures market.Firstly,the US futures insider trading system initially adopted the same trust obligation theory as the securities market,but the subject of insider trading has a growing trend.Later,the United States Commodity Futures Trading Commission(CFTC)gradually realized that the theory of fiduciary duty was not applicable to the futures market.With the passage of the Dodd Frank Act,the CFTC rules formally introduced the theory of embezzlement into the futures market.On this basis,the two futures insider trading law enforcement cases of CFTC indicate its attitude to investigate and handle futures insider trading cases based on the embezzlement theory.Finally,based on the above analysis,this paper proposes some implications for the regulation of insider trading in China’s futures market,including that the traditional theory of trust obligations in the securities market is not applicable to the futures market,improving the scope of the subject of insider trading based on the theory of embezzlement,and paying attention to the differences between futures and securities.Based on the analysis of the futures market in Chapter 2 and the beneficial experience in regulating insider trading in the U.S.futures market in Chapter 3,Chapter 4 proposes a proposal to improve the identification of the subject of insider trading in China’s futures market,which includes three aspects.The first is to improve the scope of insiders of futures information,clarify the essence of insider trading in futures based on the theory of embezzlement,and determine the scope of staff of "relevant departments",The second is to clarify the person who illegally obtains inside information,and identify the person who passively obtains inside information and the recipient of information that has been transmitted multiple times as the person who illegally obtains inside information.The third is to clarify that regulating futures insider trading does not represent an additional obligation to disclose information in the futures market. |
