| Summary: | 碩士 === 國立臺北大學 === 法學系 === 95 === Chapter One: Preliminary
The preamble includes research motivation, objectives, scope, methods and structure. The stock market is the “economic window” of a country in which the economic status responds to the performance of the stock market. A healthy stock market will facilitate economic growth; therefore, “Manipulative acts” should be legally binding. In observing stock market “Manipulative acts” cases, the court action has a tendency to result in acquittal. As a result of unclear regulation, system oversight and difficult access to evidence, the perpetrators of “Manipulative acts” are not subject to legal sanctions. Current regulation does not functionally hinder securities crimes and is a potential liability to economic growth. The core of this study discusses the appropriation of related regulations in the substantive law. Currently, procedural law is having a tendency toward Adversary System. How can prosecutor succeed in such a system?
Chapter Two: The Basic Concept of Manipulation of Economic Crime
First of all, we need to define manipulation and understand the distinction between property and economic crime from the criminal law, criminology, and economics point of view. Because of the particularity and complication of economic crime, criminal proceedings to recover penalties are difficult. Improper economic criminal regulation in the substantive law such as the serial transactions of the manipulation, the legal elements are not clear, punishment excessive sentences, and so on. Furthermore, perpetrators’ subjective wrongful intent is difficult to find. Practically, they tend to infer the existence of subjective wrongful intent by the circumstantial evidence of objective facts in the United States and Japan. Similarly, our scholars and practice have the same opinion. However, because of the incompletion of the current supervisory system, the related evidence that identify crimes is difficult to retain. Evidence-based adjudication is the main trial principle of the criminal of us. Prosecutor's Burden of Proof for proving criminal facts is discussed in this chapter.
Chapter Three: The Prosecutor’s Burden of Proof in the Criminal Trial
The beginning of this chapter introduces the relationship between criminal proof and litigation, and the origin of two legislative models, Offizialprinzip and Adversary System. Our criminal law adopts Adversary System from Common Law. According to section 161 of the Criminal Procedure Code, the prosecutor has the burden of proof. Therefore, the prosecutor must have proof beyond a reasonable doubt. How should prosecutor review the facts necessary to prove gradually? In this chapter, we will combine the concept of facts in issues and evidence in procedure law, and the material elements of crime, justification, and excuse in substantive law, to try to present how the prosecutors establish criminal by the criminal proof against the facts of the issue. The later chapter is the same. I’m going to examine the criminal facts of the serial transactions by this method, procedure, and evidence.
Chapter Four: With Special Reference on the Serial Transactions of Paragraph1, Subparagraph 4 of Article 155 of the ROC Securities and Exchange Law
Because of the means of endless economic crime, this chapter will focus on the Serial Transactions of Paragraph1, Subparagraph 4 of Article 155 of the Securities and Exchange Law. Recently, there is an increase in related cases in Taiwan which indicate the serial transactions is a gaining legal concern. Evaluation of the rate of prosecution is irrelevant to the rate of conviction considering difficulties in evidence collection, prosecutor’s burden of proof and the stock market supervision system. This study analyzes the serial transactions cases based on previous cases and deliberates the opinions in the United States and Japan. Further, I’ll explain how, in the event of insufficient evidence, the serial transactions cases are enhanced by the combination of the material elements of crime in substantive law and the findings of the evidence in criminal procedure law.
Chapter Five: The Solution to Inhibit the Serial Transactions of the Manipulation.
Economic crimes have always been highly criticized. This chapter is going to present a solution for the improper regulation of the serial transactions and explain the implementation of the prosecutors’ burden of proof. Additionally, through some practical measures, such as raising the position of the Securities and Futures Bureau, the authorization of proper investigative rights, and establishment of a sufficient supervision system to help to collect criminal evidence, we can help the prosecutor have sufficient evidence in the trial to prevent the recurrence of securities crime. The securities criminals can get the proper conviction.
Chapter Six : Conclusion
Particularity of the economic criminal makes prosecution difficult. Moreover, unclear regulation complicates proof in criminal trials. Prosecutors must prove the material elements of the serial transactions. This study analyzes important items that were recognized practically, so we can judge illegal serial transactions by accumulated practical experience. Finally, I present a solution the current improper regulations and practice.
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