The behavior of an actor using inside information to trade securities and futures is easily confused with the legitimate trading behavior of an insider who knows inside information but does not use it. The former is a serious crime of insider trading and leaking inside information, while the latter is an act permitted by laws and regulations.
Generally speaking, the legitimate trading behavior of the actor, especially the insider, has the following two situations:
First, securities and futures trading allowed by insiders who don't know inside information. Such an insider doesn't know inside information at all.
Secondly, the securities and futures trading allowed by insiders who know inside information has nothing to do with the inside information they know. This insider knows inside information, but his trading behavior does not use the information he knows.
In the first case, because of the lack of inside information, the object of insider trading crime is to leak inside information, so it is easy to distinguish it from insider trading. In the second case, because the insider's inside information is not used by the insider for securities and futures trading, the inside information will not affect the prices of the securities and futures markets. Obviously does not have the characteristics of insider trading.
In order to better distinguish the above situations, it is necessary to scientifically master several basic elements of insider trading behavior, including:
(1) has securities and futures trading behavior;
(2) The transaction is conducted by an insider or an uninformed person;
(3) The transaction takes advantage of inside information legally held by insiders or illegally held by non-insiders.
The boundary between this crime and the crime of infringing business secrets
The objective manifestations of the crime of insider trading and disclosure of inside information include the illegal disclosure and disclosure of inside information by insiders or non-insiders, and the objective aspects of the crime of infringing on business secrets include the disclosure, use or allowing others to use the business secrets of the obligee obtained by improper means, and the disclosure, use or allowing others to use the business secrets they have in violation of the agreement or the obligee's requirements on keeping business secrets. Therefore, there is a certain relationship between the crime of insider trading and the crime of infringing trade secrets. For example, the objects of the two charges are secret, and the objective aspects of both charges include leaking or disclosing relevant contents that should not be disclosed in advance. However, the difference between the two is obvious:
1, which infringe on different objects. The former infringes on insider information, which will inevitably affect the prices of securities and futures trading markets, while the latter infringes on trade secrets, which refers to technical information and business information that are not known to the public, can bring economic benefits to the obligee, and are practical and have been kept confidential by the obligee.
2. Their objective behaviors are also different. The former includes two situations: the actor directly uses the insider information without disclosing it, or indirectly participates by disclosing the insider information and suggesting others to use it, while the latter includes the following three situations:
(1) Obtaining the business secrets of the obligee by improper means such as theft, inducement or coercion;
(2) disclosing, using or allowing others to use the business secrets of the obligee obtained by means of the preceding paragraph;
(3) disclosing, using or allowing others to use the business secrets in their possession in violation of the agreement or the confidentiality requirements of the obligee.
If the behavior of the actor infringes on inside information and trade secrets. In this case, the actor's behavior constitutes an imaginative joinder of offenses, that is, the actor intentionally commits a harmful act subjectively, and at the same time violates two independent crimes stipulated in this law, namely, the crime of insider trading, the crime of leaking inside information and the crime of infringing on business secrets. According to the punishment principle of imagining several crimes, it should be punished as a felony.
The boundary between this crime and the crime of revealing state secrets
Insider trading, the crime of leaking inside information and the crime of leaking state secrets, that is, the subjects can all be state employees, and the leaked contents can all be state economic secrets and state diplomatic, financial and legislative secrets that affect securities issuance, futures trading and related activities. So there is a certain connection between the two crimes. There are also the following differences between these two crimes:
1. The former can only be intentional subjectively, and the perpetrator often has the criminal purpose of seeking illegal interests or avoiding losses subjectively, while the latter can be intentional or negligent.
2. On the subject, the former includes insiders and non-insiders, not all of whom are staff of state organs, while the latter can only be staff of state organs.
3. As for the object of crime, the former infringes on inside information, the specific scope of which is determined by laws and administrative regulations, not all of which belong to the category of state secrets, while the latter infringes on state secrets, including matters that should not be disclosed in national defense, diplomacy, legislation, justice, finance, economy, science and technology, etc. And all undecided or undeclared state affairs and all documents, telegrams, letters, materials and all relevant state secrets. Obviously, the former has a smaller scope and a lower degree of confidentiality.
4. The former objectively refers to the behavior that the actor uses inside information to trade securities and futures or leaks inside information in violation of relevant laws and regulations of securities and futures, while the latter refers to the behavior that the actor intentionally or negligently leaks state secrets in violation of laws and regulations of state secrets. In addition, the imaginative concurrence of insider trading, the crime of leaking inside information and the crime of leaking state secrets will also occur in practice. For example, the person who knows inside information is a staff member of state organs, and the inside information he leaked belongs to state secrets. This situation should be handled according to the principle of imaginative competition.