| Summary: | 碩士 === 國立政治大學 === 東亞研究所 === 102 === The Criminal Code of People Republic of China, article 180, 1st subsection: “Anyone in the know of inside information of securities transaction or anyone obtaining illegally inside information of securities transaction, before the information concerning issue of securities, transaction of securities or other information of great impact on the price of specified securities is made public, buys or sells the securities or reveals the information, if the circumstances are serious, shall be fixed-term imprisonment of not more than 5 years or criminal detention, and concurrently or indepently be sentenced to fine of not less than unlawful earnings and not more than five times of the sum. If the circumstances are especially serious, the offender shall be sentenced to fixed-term imprisonment of not less than five years and not more than ten years, and concurrently be sentenced to a fine of not less than unlawful earnings and not more than five time of the sum.”
According to the statistical results, the equities have under 10,000 holdings, the rate is about 80.28% in every individual accounts or general accounts, and, the equities have under 50,000 holdings, the rate is about 79.56% in every individual accounts or general accounts in China security market. It shows that the holders are “small investors”, and those small investors have very high percentage. The Criminal Code article 180, 1st subsection, is a classic type of concrete potential damage offence. Because of it has occur the results named “the circumstances are serious” or “the circumstances are especially serious”. However, how to definite them are difficult issues, we have to consider the legal uncertainty should be reviewed, and, protecting unspecified people who involved in the stock market in China.
Scholars point that when the crime subjects’ criminalities have general damages,the “abstract potential damage offence”has punishing justification. We concern about the legal uncertainty, obviously, The Criminal Code of People Republic of China and the supplementation do not. Therefore, we are trying to consider the possibility of abstract potential damage offence. When the legislators observe the life experiences, thus, crime subjects’ income, loss avoided or small investors’uncountble interests, can evaluate completely.
It encourage us that trying to give some suggests or revise the acts is an obligation sooner or later undoubtedly. The abstract potential damage offence, we do not need to distinguish between delictum proprium or not, the crime subjects’ income or loss is not the standard, how to get or hold the securities’ information is not an important issue, either. The way to suggest the acts is just abandon the content of “the circumstances are serious” and “the circumstances are especially serious”. In the stock market, a globalized and without national boundaries market, we have to pay attention to this issue: How to protect small investors and maintain distributive justice. When some people tried to paint the tape, rigged market or the other illegal behaviors, in order to consolidate the principle of legal certainty and fairness, we believe that have classic damage and it should be punished, cause we understand, the action of inside trading is unable to reach easily by small investors.
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