Is it a crime to repeatedly trade the loss-making part of insider information?
According to the judicial interpretation of this crime and the standards for filing and prosecuting a case, if one of the securities transaction turnover, profits or losses avoided meets the relevant standards, it shall be deemed to be "serious circumstances" as provided for in the first paragraph of Article 180 of the Criminal Law.
Article 180 [Crime of Insider Trading or Leaking Insider Information] A person with knowledge of inside information in securities or futures transactions or a person who illegally obtains inside information on securities or futures transactions buys or sells securities, or engages in futures transactions related to the inside information, or leaks such information, or explicitly or implicitly indicates that others engage in the above-mentioned trading activities before the issuance of securities, securities or futures transactions or other information that has a significant impact on the price of securities or futures transactions has not been disclosed, and the circumstances are serious. shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall be given a fine of not less than one time but not more than five times the unlawful gains concurrently or individually; where the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than one time but not more than five times the unlawful gains.
That is, if the turnover of insider trading reaches the standard of "serious circumstances" and seriously undermines the fair trading order of the securities market, then whether it is a profit or a loss, criminal liability should be pursued according to law. At the same time, if the transaction is repeated during the sensitive period of insider information, the transaction amount of the transaction at this time shall be calculated cumulatively according to law.
Article 8 of the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Criminal Cases of Handling Insider Trading and Leaking Insider Information (Fa Shi [2012] No. 6) stipulates: "Where insider trading or leakage of insider information is carried out more than two times, without administrative or criminal treatment, the amount of the relevant transaction shall be calculated cumulatively according to law." ”
There are generally two situations: one is to buy a large number of stocks during the sensitive period, and then sell them after the inside information is released to obtain high returns; Or in a bearish situation, after obtaining sensitive information, and then selling the stock within the sensitive period, so as to avoid huge losses. In this case, calculating the transaction amount is relatively simple, just add up the amount of buying or selling during the sensitive period. In another case, repeated buying and selling during the sensitive period is relatively complicated to calculate the "transaction amount".
Criminal Risk Warning
Under the general trend of "zero tolerance" for capital market crimes by strong financial supervision, the number of cases prosecuted and adjudicated by the Supreme People's Procuratorate and the Supreme People's Court on insider trading and market manipulation securities crimes has been rising, and the Ministry of Public Security has also cracked down on crimes such as fraudulent issuance, illegal disclosure, financial fraud by intermediaries, and false certificates. From the perspective of criminal risk subjects, insider trading and market manipulation are mainly aimed at listed companies, executives and investment institutions, and for fraudulent issuance and illegal disclosure, in addition to listed companies, the new criminal law amendment also adds controlling shareholders and actual controllers, while for financial fraud and false certificates, it is aimed at intermediaries such as accountants, appraisers and lawyers. In fact, under the strong management of finance, whether it is the primary and secondary markets, including issuers, investors and intermediaries, or administrative supervision entities in the process of securities issuance and trading, they should improve their awareness of practice risks and avoid the occurrence of legal risks.
In the event of a securities crisis, criminal lawyers should intervene in advance from the stage of securities crisis response and hearing, administrative reconsideration and litigation, so as to reduce or avoid the occurrence of criminal risks and do a good job in remedial work.
Based on the experience of handling cases and the characteristics of the connection between the execution of securities crime cases, Kangda Financial Execution Lawyer Team is composed of senior criminal lawyers, administrative lawyers and financial non-litigation compliance lawyers, and will launch a series of legal popularization articles and videos on typical crimes of securities and financial crimes in the future, aiming to remind securities practitioners and securities-related institutions of administrative and criminal legal risks, and make a modest contribution to ensuring the high-quality development of the capital market in the new era.
Conda Financial Execution Bridging Lawyer Team
Kangda Financial Execution Lawyer Team is a comprehensive legal service team in the financial field with the advantages of execution relief established by Kangda Law Firm's criminal defense lawyers, administrative litigation lawyers and financial securities lawyers, focusing on securities, trusts, funds, financial management and inheritance, insurance, banking and other financial business and compliance, financial business administrative relief and criminal relief and defense. He is especially good at investment and compliance of securities business, administrative litigation cases of securities violations, and criminal cases of securities crimes, and provides clients with a full range of legal services in the whole process of crisis handling, administrative investigation and hearing, administrative reconsideration and administrative litigation, criminal defense and other executions of securities compliance.
The core advantage of the team is that he has been practicing for more than 20 years as a strong combination of administrative law lawyers and criminal lawyers, all graduated from well-known universities such as Chinese Minmin University, Peking University, Southwest University of Political Science and Law, etc., with rich experience in financial business services, financial supervision and judicial work experience, has handled a large number of execution cases involving administrative litigation, criminal defense and other executions, proficient in financial business, familiar with regulatory regulations and policies, skillful in the use of administrative remedies, and accurately grasps criminal remedies and defense.
At the same time, adhering to the concept of teamwork and specialization, while handling major, difficult and complex cases, it pays attention to the guidance and support of legal experts, and forms a combined case-handling model of "legal experts + judicial experience + senior lawyers" to ensure the quality and professionalism of major and important cases.
Kangda Financial Execution Linkage Legal Service Process
Conda Financial Execution Bridging Lawyer Team
Contact us
Statement
Kangda Kedong's criminal defense articles are for communication purposes only and do not represent formal legal advice or recommendations issued by Kangda Law Firm or its lawyers. For legal needs, please contact our team of lawyers. If you need to reprint or quote any content of such articles, please indicate the source and author.