Regarding the issuance of the "On Handling Securities and Futures
Work on illegal and criminal cases
Opinions on a number of issues".
To the High People's Courts, People's Procuratorates, and Public Security Departments (Bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government, the PLA Military Courts, the PLA Military Procuratorates, the Xinjiang Uygur Autonomous Region High People's Court Production and Construction Corps Branch, the Xinjiang Production and Construction Corps People's Procuratorates and Public Security Bureaus, the China Securities Regulatory Commission's Supervision Bureaus of all provinces, autonomous regions, municipalities directly under the Central Government, and cities specifically designated in the state plan, Shanghai and Shenzhen Commissioners' Offices, and Inspection Corps:
In order to fully implement the spirit of the 20th National Congress of the Communist Party of China, conscientiously implement the spirit of the Central Economic Work Conference and the Central Financial Work Conference, crack down on securities and futures violations and crimes in accordance with the law, and ensure the healthy development of the capital market, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the China Securities Regulatory Commission jointly formulated the Opinions on Several Issues Concerning the Handling of Securities and Futures Violations and Crimes Cases. It is hereby printed and distributed, and please conscientiously implement it in light of actual conditions. Please report to the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the China Securities Regulatory Commission in a timely manner any new situations and problems encountered in the course of enforcement.
Supreme People's Court, Supreme People's Procuratorate
Ministry of Public Security, China Securities Regulatory Commission
April 16, 2024
Supreme People's Court, Supreme People's Procuratorate
Ministry of Public Security, China Securities Regulatory Commission
Work on handling cases of securities and futures violations and crimes
Views on a number of issues
These Opinions are drafted on the basis of relevant legal provisions and in conjunction with law enforcement and judicial practice, so as to strictly crack down on illegal and criminal activities in securities and futures in accordance with law, to preserve order in the capital market, to strengthen efforts to connect administrative law enforcement and criminal justice, and to improve mechanisms for law enforcement and judicial departments to cooperate with restraints.
1. General requirements
1. Adhere to the requirement of zero tolerance, and strictly crack down on illegal and criminal activities in securities and futures in accordance with the law. Increase the force of investigation and punishment, persist in moving everything that should be removed, arresting when arrested, and prosecuting when it is prosecuted, strictly controlling the application of suspended sentences, increasing the force of application and enforcement of property punishments, maximizing the recovery of stolen goods and losses, and improving the system of full-chain crackdown and all-round accountability. Correctly implement the criminal policy of blending leniency with severity, adhere to the main tone of "strictness", lawfully determine leniency circumstances, and bring about the organic unity of political, legal, and social effects.
2. Strengthen work coordination and form a joint work force. The people's courts, people's procuratorates, public security organs, and securities and futures regulatory agencies should adhere to the division of labor and responsibility, cooperate with each other, and restrain each other, improve and improve working mechanisms, earnestly strengthen the transfer, investigation, prosecution, and trial of securities and futures criminal cases, persist in taking trial as the center, continuously strengthen awareness of evidence and procedures, effectively strengthen legal supervision, and ensure strict law enforcement and fair justice. It is necessary to persist in overall planning and coordination, give full play to the functions and roles of various departments, combine handling cases in accordance with the law with the prevention and resolution of financial risks, and maintain economic and financial security and social stability.
3. Build consensus on law enforcement and justice, and increase the level of specialization. The people's courts, people's procuratorates, public security organs, and securities and futures regulators are to clarify the standards for law enforcement and case handling and the standards for grasping policies through methods such as jointly formulating normative documents and jointly publishing typical cases, and unify the understanding and application of law. Optimize institutional setups, strengthen the construction of case-handling bases and trial bases, and enrich front-line case-handling forces. Strengthen the professionalization of law enforcement and judicial teams, and raise the level of specialization.
II. The connection between administrative law enforcement and criminal justice
4. If the securities and futures regulatory authority discovers that it is suspected of committing a crime and needs to be investigated for criminal liability in accordance with the law, it shall promptly transfer it to the public security organ. The following materials shall be attached when transferring the case: the transfer document, the list of items involved in the case, and evidentiary materials, and where an administrative punishment decision or market entry ban decision has already been made, the administrative punishment decision or market entry ban decision shall be attached. At the same time, a copy of the transfer document, administrative punishment decision, and market entry ban decision shall be sent to the people's procuratorate at the same level. The people's procuratorate shall supervise the activities of cases transferred by the securities and futures regulators in accordance with law.
5. If the public security organ finds that there are criminal facts that need to be investigated for criminal responsibility in a case transferred by the securities and futures regulatory authority, it shall promptly file the case. Where a higher-level public security organ designates jurisdiction or notifies a written notice to file a case, it shall file the case within the required time period. If the public security organ decides not to file a case, the securities and futures regulatory agency may apply for reconsideration, and the people's procuratorate shall supervise the public security organ's case filing and investigation activities in accordance with law.
6. Where the public security organ decides not to file a case or withdraw the case, the people's procuratorate decides not to prosecute, or the people's court decides not guilty or waives criminal punishment, and there is evidence to prove the existence of securities and futures violations, and it is necessary to give administrative punishments, confiscation of illegal gains, market bans, etc., to the persons involved in the case in accordance with securities and futures laws and regulations, it shall submit an opinion within one month of making the decision or judgment, attach effective legal documents, evidentiary materials, and the basis for disposition, and transfer it to the securities and futures regulatory agency for handling in accordance with the following circumstances:
(1) If the case is transferred to the Ministry of Public Security by the China Securities Regulatory Commission, the local public security organ shall report to the Ministry of Public Security and transfer it to the China Securities Regulatory Commission for handling in accordance with the law, or the local people's procuratorate or people's court shall transfer the case to the securities and futures regulatory agency originally responsible for the investigation of the relevant case for handling in accordance with the law.
(2) If the case is accepted by the public security organ at or below the provincial level, the provincial public security organ, or the people's procuratorate or people's court that made the decision shall transfer the case to the local securities and futures regulatory authority for handling in accordance with law.
The securities and futures regulatory authority shall promptly notify the public security organs, people's procuratorates and people's courts transferring the case in writing and attach relevant legal documents.
III. Jurisdiction over Criminal Cases
7. The intermediate people's court has jurisdiction over first-instance cases of securities and futures crimes, the people's procuratorate at the same level is responsible for initiating public prosecutions, and the public security organs at or above the prefectural (municipal) level are responsible for filing and investigating.
8. Securities and futures crime cases that several public security organs have jurisdiction over shall be under the jurisdiction of the public security organ that initially accepted the case, and may be transferred to the jurisdiction of the public security organ at the main place of the crime when necessary. If it is more appropriate for the public security organ for the criminal suspect's place of residence to have jurisdiction, the public security organ for the criminal suspect's place of residence may have jurisdiction. Where disputes arise through negotiation, and where negotiation fails, the common public security organ at the level above is to designate jurisdiction.
9. The place where securities and futures crimes are committed, including the following circumstances: the place where the securities and futures account and margin account are opened; The place where the transaction declaration instruction is issued and the place where the transaction is matched into the place; the place where the transaction fund transfer instruction is issued; the location of the securities and futures trading venue and the location of the registration and clearing institution where the securities and futures varieties are listed; the place of sending and receiving trading orders and inside information; The place where the false information is compiled, the place where the documents are prepared and declared, and the place where the registration is reviewed, or where the concealment of information that is not disclosed in accordance with regulations occurs by concealing important facts or false issuance documents, financial accounting reports, and other information disclosure documents; the place where the proceeds of crime are actually obtained, hidden, transferred, used, or sold; The location where intermediary organizations that undertake the duties of asset appraisal, accounting, auditing, legal services, sponsorship, etc., provide intermediary services.
10. Place of residence includes the place of household registration and habitual residence. Where the registered domicile of a unit is its place of residence, and the place of its principal business or principal administrative office is inconsistent with its registered domicile, the principal place of business or the location of its principal administrative office is its place of residence.
11. In any of the following circumstances, the people's courts, people's procuratorates, and public security organs may combine cases within the scope of their duties:
(1) One person commits several crimes;
(2) joint crimes;
(3) The criminal suspect or defendant of a joint crime also commits other crimes;
(4) The crimes committed by multiple criminal suspects or defendants are related, and the combined handling of the cases is conducive to ascertaining the facts of the case.
12. In cases where a higher-level public security organ designates a lower-level public security organ to file and investigate, and it is necessary to arrest the criminal suspect, the public security organ investigating the case is to request that the people's procuratorate at the same level review and approval, and the people's procuratorate at the same level shall accept it.
Where a public security organ's investigation is completed and transferred for review for prosecution, and upon review the people's procuratorate at the same level finds that it is necessary to designate trial jurisdiction or transfer it to another people's procuratorate for prosecution, it is to be handled in accordance with relevant provisions.
13. Give full play to the advantages of specialized case-handling bases and trial bases. Increase the force of cases assigned to the securities and futures crime handling base, and appropriately centralize jurisdiction over securities and futures crime cases in accordance with law. Where it is more appropriate for a judicial organ other than the site of the crime or the place of residence of the criminal suspect or defendant to have jurisdiction, in principle, designate a case-handling base or trial base for the public security organs, people's procuratorates, and people's courts for investigation, prosecution, and trial. Where the public security organs, people's procuratorates, and people's courts have the same location for case-handling bases and trial bases, appropriately simplify the formalities for handling the designated jurisdiction at each stage, and accelerate the progress of handling.
4. Collection, review and use of evidence
14. Illegal and criminal acts in securities and futures have the characteristics of professionalism and concealment, and in order to expose and prove the illegal and criminal acts, the evidence that can be used to prove the facts of the case shall be "collected as soon as possible". Where it is discovered that the criminal suspect has committed other crimes during the investigation of securities and futures crimes, a comprehensive investigation and evidence collection shall be conducted together in addition to transferring them to a department with jurisdiction for handling in accordance with law.
15. Pay attention to the collection of objective evidence such as extraction evidence, documentary evidence, and electronic data. The collection and extraction of electronic data shall comply with legally-prescribed procedures and relevant technical standards, to ensure the authenticity, legality, and integrity of electronic data.
When retrieving electronic data such as securities and futures entrustment records, transaction records, trading terminal equipment information and registration and depository settlement materials retained by securities trading venues, futures trading venues, securities registration and clearing institutions, futures margin monitoring institutions, and securities companies and futures companies, the original data shall be reproduced on electronic CD-ROM or other carriers, with explanations such as production methods, production time, producers, and integrity check values, and shall be signed or sealed by the producer and the holder of the original electronic data.
Information disclosure announcements issued by issuers, listed companies or other information disclosure obligors on the websites of securities trading venues or media that meet the requirements prescribed by the securities and futures regulatory authorities, and where printed copies or electronic discs or other carriers are produced on the basis of them, may be used as criminal evidence if they are verified to be correct and with explanations such as the source, producer, production time, and production location.
16. Where securities and futures regulators fail to obtain evidence that directly proves the illegal conduct of securities and futures in the course of administrative law enforcement, but other evidence is highly related and mutually corroborative, forming a chain of evidence, the facts of the violation may be comprehensively determined on the basis of the standard of obvious preponderance of evidence.
Public security organs, people's procuratorates, and people's courts handling securities and futures crime cases shall ensure that the facts of the crime are clear and the evidence is credible and sufficient. Where there is no confession by the criminal suspect or defendant, and the evidence is credible and sufficient, the facts of the case may be determined.
In handling cases of securities and futures violations and crimes involving the public, where it is not possible to collect verbal evidence one by one due to objective constraints, the facts of the crime such as the amount of funds and the amount of losses may be comprehensively determined on the basis of objective evidence and verbal evidence that have already been collected and verified in accordance with law.
17. Objective evidentiary materials such as physical evidence, documentary evidence, audiovisual materials, and electronic data collected by administrative organs in the course of administrative law enforcement and case investigation may be the basis of a verdict in criminal proceedings where they are verified to be true through legally-prescribed procedures and the collection procedures comply with relevant laws and administrative regulations.
18. Public security organs, people's procuratorates, and people's courts may request the securities and futures regulatory authorities to issue professional determination opinions on the securities and futures professional issues involved in the case, which shall be used as a reference in determining the facts of the case. In cases where the securities and futures regulatory authorities have imposed an administrative penalty, and there is no major change in the main facts and evidence after entering the criminal proceedings, the public security organs, people's procuratorates, and people's courts may refer to the determination opinions of the administrative punishment decision.
The issuance of professional determination opinions is not a necessary procedure for handling criminal securities and futures cases. Public security organs, people's procuratorates, and people's courts shall determine the nature of the facts of the case in accordance with law, and where there is no professional determination opinion, it does not impact the conclusion of the investigation of the case, the initiation of a public prosecution, or the making of a judgment.
5. Persist in cracking down strictly in accordance with the law
19. Deeply understand the serious harm that securities and futures crimes pose to the order of financial management and financial security, persist in severely punishing them in accordance with law, and give full play to the punishment and prevention functions of criminal punishments. Relative non-prosecution, exemption from criminal punishment, and suspended sentences are generally not to be applied to criminal suspects or defendants who have circumstances such as not truthfully confessing crimes, obstructing case-handling efforts in various ways, refusing to return stolen money or goods, or using stolen money or goods for illegal activities, where illegal profits are particularly huge, and who have repeatedly committed securities and futures violations and crimes, causing listed companies to be delisted, investors to suffer major losses, financial risks that might trigger financial risks, seriously endangering financial security, or other vile social impacts or serious harmful consequences.
20. Strictly and quickly investigate and handle cases of financial fraud, embezzlement of listed companies' assets, insider trading, market manipulation, securities fraud, and other illegal and criminal cases in accordance with law. Securities issuers, controlling shareholders, actual controllers, directors, supervisors, senior managers, financial practitioners, etc., who commit securities and futures violations and crimes, shall be severely punished in accordance with law. If a crime is constituted, criminal responsibility shall be pursued in accordance with law if the intermediary organizations and financial institutions that provide false supporting documents and financial bills for financial fraud, professional gangs that carry out cooperative acts such as capital allocation, trading and stock recommendation for the crime of insider trading and manipulation of the securities and futures market, and external personnel who collude with the listed company inside and outside the company to hollow out the company's assets, and constitute a crime.
21. Correctly implement the criminal policy of blending leniency and severity, so that punishment is appropriate to the crime and punishment is commensurate with the crime. Those who actively cooperate with the investigation, truthfully confess the facts of the crime, take the initiative to return stolen goods and make restitution, and sincerely admit guilt and repentance, may be given a lenient punishment in accordance with law; Where the scope and requirements for plea leniency are met, it is to be handled in accordance with the provisions of the Criminal Procedure Law. The standards for designation must not be lowered in accordance with law, such as voluntary surrender, meritorious service, accomplice, and other legally-prescribed lenient punishment circumstances.
22. Increase the force of the application and enforcement of property punishments, with people's procuratorates submitting sentencing recommendations and people's courts making judgments, emphasizing the simultaneous use of liberal punishments and property penalties and the recovery of unlawful gains, and increasing the force of economic punishment and property enforcement for securities and futures criminals. People's procuratorates and people's courts may submit a recommendation for a professional prohibition in accordance with law, and make a decision on a professional prohibition based on the circumstances of the criminal suspect's or defendant's crime and the need to prevent further crimes.
6. Improve coordination and cooperation mechanisms
23. Improve mechanisms for coordination in case handling. Securities and futures regulators and public security organs may jointly carry out administrative investigations and criminal verification activities through joint intelligence guidance and investigation, comprehensive use of data resources and information technology, for clues that may be suspected of securities and futures crimes. All levels of people's courts, people's procuratorates, public security organs, and securities and futures regulatory agencies shall assist each other in accordance with law when they inquire into information on the securities and futures account transactions involved in the case, the household registration, entry and exit of relevant persons, and other information involved in the case, collect case materials, and request that the criminal suspect or defendant who has been subject to criminal compulsory measures be served legal documents, make inquiries on behalf of the criminal suspect, or consult on professional issues.
24. Establish and complete mechanisms for information circulation. Securities and futures regulators, public security organs, and procuratorial organs have strengthened cooperation and coordination, focusing on the use of modern scientific and technological means, promptly reporting case transfers, handling information, and coordination needs in accordance with the law, relying on big data intelligent application technology, to carry out resource integration and sharing, and work together to improve the quality and efficiency of case handling.
25. Establish and complete mechanisms for joint law enforcement and judicial special actions. The people's procuratorates, public security organs, and securities and futures regulators are to carry out joint special operations as needed for their work, focusing on rectifying illegal and criminal activities such as key links, emerging fields, and high-incidence types; Jointly listed to supervise and handle major cases, respond to market concerns in a timely manner, and play a deterrent role.
26. Establish and complete mechanisms for work consultations. The people's courts, people's procuratorates, public security organs and securities and futures regulators shall establish consultation systems at different levels to resolve disputes such as the application of law and standards of proof encountered in their work, and eliminate differences in the process of cooperation and restraint in their work; Analyze and judge the situation of violations and crimes, put forward governance countermeasures, and jointly improve the quality and efficiency of work.
27. Where violence or threats are used to obstruct the staff of securities and futures regulatory agencies from performing their duties in accordance with law, the public security organs shall deal with it in accordance with law, and if a crime is constituted, criminal responsibility shall be pursued in accordance with law.
28. The people's courts, people's procuratorates, and public security organs should consider the actual conditions of their work to further improve case-handling bodies, strengthen case-handling forces, and increase the force of case-handling work. It is necessary to strengthen the professionalization of the public security and judicial teams in securities and futures crime work, encourage and support the construction and cultivation of professional case-handling capacity in the jurisdiction of provincial-level people's courts, people's procuratorates, and public security organs, and give full play to the demonstration effect of case-handling bases and trial bases. Through joint research, joint training, the release of typical cases, the formulation of normative documents, etc., further unify the standards and standards of law enforcement and justice, and improve the ability and level of handling securities and futures crime cases.
VII. Supplementary Provisions
29. These Opinions apply to the people's courts, people's procuratorates, public security organs, and securities and futures regulatory agencies handling cases of securities and futures violations and crimes.
30. Securities and futures crimes referred to in these Opinions include crimes provided for in Criminal Law articles 160, 161, 169-1, 178.2, 179, 180, 181, 182, 185-1, paragraph 1, and 229 (only involving securities and futures business).
31. These Opinions shall come into force on the date of promulgation, and the "Opinions on Several Issues Concerning the Handling of Securities and Futures Illegal and Criminal Cases" (Zheng Jian Fa [2011] No. 30) issued on April 27, 2011 shall be repealed at the same time.
[Source: Supreme People's Procuratorate WeChat (ID: zgrmjcy01)]