Principles of Criminal Legislation on Securities Crimes

Author: Zhu Erjun
Publisher:
Publish Date: 2000-01-01
Features: The criminal legislation for securities crimes aims to establish a scientific and moderate criminal legal net for securities crimes. The criminal legal net for securities crimes consists of three parts: the scope of securities crimes, the criminal liability for securities crimes, and the criminal legislative model for legally expressing both. The entire mission of the criminal legal net for securities crimes lies in optimally allocating criminal legal resources related to securities crimes, i.e., reasonably setting securities crimes and their criminal liability, while scientifically expressing them in criminal law to achieve optimal, scientific, and reasonable criminal legislation for securities crimes. This paper first explores issues such as the nature and characteristics of securities, the securities market and its functions, the concept and historical evolution of securities crimes, the current state and characteristics of securities crimes in China, and discusses the functions and fundamental principles that must be adhered to in the criminal legislation for securities crimes. The paper argues that the scope of securities crimes must be determined based on the severity of harm to the securities management order and should be distinguished from violations of securities ethics, civil violations of securities laws, and administrative violations of securities laws. Based on a systematic and classified comparison of different provisions of criminal legal norms for securities crimes in foreign countries, the paper designs the securities crimes that should be established in China according to the actual conditions of China, using the concept of similar objects as a standard and referring to the objective manifestations of behavior. This securities crime scope specifically includes 5 major categories and 17 types of specific securities crimes. The paper argues that the basis for establishing the criminal liability for securities crimes is the unity of the severity of harm to the securities management order and personal danger, as well as the dialectical unity of retribution and prevention. Regarding the methods of bearing criminal liability for securities crimes, the paper, combining the actual conditions of securities crimes and criminal law in China and drawing on beneficial foreign experiences, believes that it should be improved in terms of diversification and rationality according to the basic principles of securities criminal law. In terms of diversification of methods of bearing liability, the paper argues that securities crimes should not be subject to the death penalty, life imprisonment, deprivation of political rights, confiscation of property, or control, but can be subject to fixed-term imprisonment, short-term imprisonment, and fines. At the same time, two additional punitive measures—prohibition from engaging in the profession and dissolution of legal persons—should be supplemented, along with non-punitive measures such as reprimands, (forced oaths of repentance), apologies, compensation for damages, administrative penalties or disciplinary measures, or mere declaration of guilt. In terms of rationalization of methods of bearing liability, the paper argues that three aspects should be prioritized: (1) raising the status of fines, (2) concurrent imposition of qualification penalties, and (3) strengthening the punishment of unit securities crimes, and it points out specific measures and approaches for implementation. The paper argues that the criminal legislative model for securities crimes is the way in which securities crimes and their criminal liability are expressed in criminal law. Taking the complete criminal legal norms for securities crimes, which include specific descriptions of securities crimes and prescribed penalties, as a premise, the paper classifies the criminal legislative models for securities crimes in various countries around the world in multiple ways and analyzes their advantages and disadvantages. On this basis, the paper dissects the existing criminal legislative model for securities crimes in China, pointing out the various shortcomings and their causes, while proposing methods for improvement in terms of legislative concepts, legislative techniques, and legislative quality. Finally, the paper designs a reasonable and scientific criminal legislative model for securities crimes in China: First, at the macro level, it adopts a legislative model dominated by the strict (-type) with supplementary (typical-type) provisions. At the meso level, it adheres to a centralized model, incorporating both one-crime-one-penalty and multiple-crimes-one-penalty models. At the micro level, it adopts both descriptive (descriptive crime descriptions) and legal-violation (legal-violation-style) models. Second, when the criminal law undergoes major revisions (structural revisions), it adopts a classified chapter system, setting aside a separate chapter or section for securities crimes, consolidating currently scattered securities crimes from different chapters into a single establishment. Simultaneously, it revises the Securities Law, Company Law, and Criminal Law to eliminate conflicts between their provisions, removing relevant provisions on securities crimes in the Company Law (dependent on the reintegration of securities-related provisions in the Securities Law and Company Law), ensuring that the provisions of the Securities Law and Criminal Law complement each other, and specifying the specific articles of the Criminal Law Subvolume to be applied in cases of securities crimes under the Securities Law. Third, it maintains the existing legislative model while adding necessary types of securities crimes to the Criminal Law Subvolume on a reasonable and scientific basis. Simultaneously, it revises the Securities Law, Company Law, and Criminal Law to eliminate conflicts between their provisions, ensuring that their contents complement each other and specifying the specific articles of the Criminal Law Subvolume to be applied in cases of securities crimes under the Securities Law and Company Law. The paper focuses on the practical prevention and control of securities crimes, providing a comprehensive, systematic, and scientific analysis of both the objective and subjective causes of securities crimes, which manifest as both macro phenomena and micro behaviors. The objective causes of securities crimes refer to various negative phenomena in the objective social environment, especially in the securities market, that stimulate and induce the occurrence of securities crimes, including issues related to the operation mechanism of the securities market, management problems in the securities market, negative impacts of the market economy, operational failures of securities criminal law, and so on. These objective negative phenomena exist relatively independently but also interact with each other, and their combined effect not only stimulates the formation of desires for securities crimes and the occurrence of such behaviors but also makes it difficult to effectively suppress them once they form and occur. The analysis of the subjective causes of securities crimes primarily focuses on the subjects and their psychological reasons. The control of securities crimes is the starting point and destination of the study on securities crimes. The paper's research on the control of securities crimes primarily covers aspects such as the meaning, classification, principles, and specific countermeasures of securities crime control. Due to the complexity and diversity of the causes of securities crimes and the characteristics of securities crimes themselves, the control of securities crimes is not an easy task but a grand systematic project involving all aspects of the securities market, requiring the mobilization of all available forces, adoption of all possible means, strategies, and tactics, coordinated actions, and organic coordination to form a comprehensive, multi-level, multi-faceted, three-dimensional, and dynamic control system. Specific countermeasures for the control of securities crimes should include the following aspects: continuing to improve the operating system of the securities market, further standardizing the behavior of various subjects in the securities industry, eliminating and weakening the psychological tendency toward securities crimes, strengthening the supervision of the securities industry, and improving the operation of securities laws, especially securities criminal law. Keywords: Securities, Securities Crimes, Criminal Legislation, Criminal Liability, Legislative Model, Causes of Crime, Crime Prevention