關(guān)于操縱證券市場(chǎng)行為認(rèn)定和處罰中若干問題比較

1、關(guān)于操縱證券市場(chǎng)行為認(rèn)定和處罰中若干問題比較some problems in the identification and punishment of securities market manipulation are comparedby gu xiao rongarticle 182 of the new criminal law in china, taiwan and hong kong securities law stipulate of manipulation of the securities market, also can be called the crime of

2、manipulation of the securities market or stock manipulation).in the securities market, the price that is naturally formed by the supply and demand relationship is the normal, authoritative price and operating the market behavior is artificially distort the normal price of the securities market, and

3、do great harm to the order of the securities market, therefore, the law must be banned. the so-called manipulation market refers to the act of artificially changing or fixing the stock market to induce others to participate in securities trading, thereby making a profit for oneself market manipulati

4、on, in fact, is a kind of deception, through artificially affect securities market price to cheat investors to ben efit from or pass on risk in terms of the nature of market manipulation, the mainland is in fact consistent with hong kong and taiwan.however, in the concrete form of market manipulatio

5、n, the mainland and hong kong and taiwan regions are different, and the following major issues are compared.one, about illegal short selling securitiesillegal short selling is an important means of manipulating the securities market some laws put it in the act of manipulating securities markets; som

6、e of them are listed separately. here, we study it as a special issuea short selling is an item that the seller does not hold when it is sold. it covers a wide range of products, ranging from the sales of samples to the annual subscription of newspapers and magazines, which are not yet produced in a

7、dvance in this case, the seller believes that they will supply the goods to the buyer on delivery day.when securities are traded, they must be delivered in the short term stock is the general practice of short-selling, short sellers first borrowed securities to a third party, in settlement of trade,

8、 and then in later days of buying the securities to the lender if the seller's price falls after the sale, the short seller can make a profit because he can buy the securities at a lower price and return it to the lender on the other hand, if the price of securities rises after the sale, the sho

9、rt seller suffers because he is going to buy the securities at a higher price and return it to the lendershort selling can slow the rise of the stock market when prices rise. and in the stock market prices fall, due to the short sellers will buy securities to return to lenders, therefore, short sell

10、ing is slow the buffer of falling prices the positive effects of short selling are recognised stock exchanges in new york and london, for example, allow short selling but short selling also has a negative impact, particularly in the case of immature or more vulnerable markets, where short selling ac

11、celerates the decline and has many negative effectsmainland china is a ban on short selling of securities article 141 of the securities law of our country: "the securities firm accepts that the selling securities must be the securities in the customer，s account and not the securities trading. a

12、rticle 182 of the criminal law shall also act as one of the acts prohibited by the criminal law.hong kong laws are in principle prohibited from selling short selling. according to the securities ordinance of hong kong 80 (1) of the ordinance, any person in hong kong without the securities lending an

13、d short selling activity, was illegal, upon conviction, can be jailed for six months and fined 10000 yuan. in january 1994, the sfc successfully prosecuted a woman surnamed wang, accusing her of selling short shares without having to borrow shares mr wang was charged with 13 counts of selling differ

14、ent securities a hong kong court has sentenced west referee clan in violation of the regulations on the securities the provisions of article 80 (1), convicted, fined 25000 yuan, 05500 yuan and ordered to pay fee. in may 1995, csrc again successful prosecution three illegal short people, accusing the

15、m of shorting a group share warrant, was sentenced to a fine of $10000 each, on the other, respectively, to pay $02000 to $04200 cost of the investigation.the hong kong stock exchange has implemented a short selling plan since january 3, 1994. short selling must be in compliance with the short selli

16、ng regulations (appendix 11). there are some major clauses in the short selling regulation:(1) stockbroking for short selling must be registered on the stock exchange before the short selling is carried out(2) short selling brokers can only sell "specified securities" in accordance with th

17、e provisions of the short selling regulations. it refers to the securities that are designated by the united exchange for short selling these securities usually have a lot of trading at the time, 21 stocks, such as cheung kong and china power, were chosen as targets for short selling.(3) short selli

18、ng brokers must keep and submit detailed records of all their short selling activities(4) is a short sale can only buy and sell securities specified, and the automatic for dish and clinch a deal automatically inside the system, this system is for securities trading and setting up and operation of th

19、e stock exchange (which enables the stock exchange according to the latest data on short selling activity monitor)(5) short selling should indicate that the directive is actually a short selling instruction.(6) if the selling price is lower than the market the best price at the time, should not be i

20、n the stock exchange of specified short sale of securities (also intensified to prevent shorting the stock market down)(7) unless shorting stock brokerage agreement has to ensure that the provisions of 7, he can obtain the specified stock for delivery, otherwise, should not be in its own name or on

21、behalf of clients, a designated securities short instructions the aim is to ensure that short sellers can deliver shares in short selling.(8) if the customer does not set up a security deposit account, the short-selling broker shall not accept the short selling order from the customer(9) short selli

22、ng broker shall ensure that those who have the open short positions of customers, at any time to maintain a minimum margin, the amount of not less than 105% of the value of their short positions this is to control the risk associated with volatility. (note: see: 1. the "'securities law of t

23、he hong kong company, law press, june 1999), pp. 227 226; 2. the financial investment law practice, the commercial press in february 1996, pp. 71-71; (3) the valuation of the stock investment law practice, the commercial press in september 1994, pp. 177 " 175.)under the rules of the securities

24、ordinance, stocks were required to borrow for up to 14 days, or within 14 days of borrowingthe initial trading was not active because of hong kong，s limited exposure to short selling securities between january and june 1994, only 28. 31 million shares were sold short some measures have been eased, a

25、nd the number of shorting securities has been rapidly amplified by trading in futures options on securities in the asian financial crisis of 1997 and 1998, short selling became an important instrument for international financial speculators to shock hong kong，s currency markets the hong kong sar gov

26、ernment submitted 30 proposals to the legislature in early september 1998, including penalties and penalties for punishing illegal short-sellers among them, there are some measures for short selling and delivery of stocks: (note: ''reference news", september 9, 1998, china securities jo

27、urnal, september 10, 1998)(1) the united exchange should strengthen the management of short selling activities and have the right to investigate the failure of short-selling stocks to be delivered on time(2) the stock exchange set up a professional team, in violation of the law of agency members wil

28、l take a more severe punishment, in addition to a fine, stop trading authority or cancel the exchange membershipmeasures after approved by the csrc and the stock exchange is instantly restore limit shorting shares measures, to reduce short selling stocks by the international speculators used to driv

29、e down the price tool, at the same time, the stock exchange to know shorting shares the identity of the customer, in order to investigatethe central clearing company has strictly implemented the rules for the delivery of the stock in two days, and the central clearing company has amended the relevan

30、t rulestake appropriate disciplinary action against the broker who is unable to deliver on timebrokers have not settlement period refers to the number of con tracts, should be proportional to the brokerage firm capital, if brokers to borrow capital increase period refers to the number of contracts,

31、also can increase by 20%in order to strengthen the futures market transparency, brokers to the csrc provide large customer holding period refers to contract information, brokers holding period refers to the situation will release to the market for the exchange will issue refers to the deposit contra

32、ct by each hk $80000 to hk $120000, financial affairs suggested that number will increase the deposit period refers to the contracts held by 10000 to 5000 zhang is even lower.in the futures and spot market trading volume, if clinch a deal the quantity stock and can，t even spot actual proportion, onc

33、e found a manipulation of the market activities, economic affairs and the exchange and the securities and futures commission, immediately set about censorship, prevent the deterioration of the trendthe csrc will strengthen the investigation and prosecution of illegal shorting shares activities, fail

34、ed to declare the stock short selling activity, considered as a criminal offence, the csrc will aggravate punishment illegal shorting shares activities, from the current sentenced to six mon ths and fines of up to hk $10000, sentenced to two years and a fine of hk $100000.in the case of stockbrokers

35、 and traders, if they find that the declaration is false, it shall be listed as criminal offence appeared again in order to avoid the stock or borrowing and short delay delivery work management is bad, all securities in electronic trading, unified all accounting records, at the same time, forcing al

36、l investors to open trading accounts in a central clearing house, makes it easy to grasp the risk managementincreased stock lending oversight bureau of finance and economics research, in order to improve the transparency and avoid custodian to stock lending to the international speculators, bureau o

37、f finance and economics should be made the revision suggestions to the legislative counci 1.according to the law in hong kong now, can only command the securities and futures commissi on, the chief executive by csrc again instruction two exchange or a securities company, do something to maintain the

38、 public interest, in order to cope with emergencies in the future, propose legislation giving the chief executive power, can be directly sent two exchanges and central clearing company, performed to maintain the public interestfiscal affairs will be set up as a whole across departments and cross-mar

39、ket supervision team, regularly with the hkma, sfc, the two exchanges and central clearing by top management, exchange and analyze market trends, latest enables the government to know in advance of market manipulation activities, as well as the countermeasurethe securities law of taiwan stipulates t

40、hat there are conditions for margin trading, or short selling article 6 of the securities exchange act and the management of a securities firm conducting securities trading margin method securities for margin standard", "complex securities financial co., ltd. of refinancing business of a s

41、ecurities firm manipulation method" and other regulations, rules and measures for the object of securities, the proportion of deposit, interest rate, borrowing limit, time limit and other issues have made specific provisionsin taiwan, the proportion stipulated by investors to pay the deposit, t

42、o borrow a certain number of shares, entrust a securities broker to sell, while the pledge of securities institutions have sold the stock price, as collateral securities investors who entrust the trading of securities and securities must first open an account at the securities brokerage and sign a c

43、on tract with the securities firm to sell the shares the die nt must deliver the required proportion of the deposit, and then, if the stock is sold, the stock is sold and the stock is returned to the securities firm because the stock that the client sells is borrowed, and not owned by itself, it is

44、called short sellingtaiwan original rules more than 500000 shares of large trading limited to cash, cash transactions shall not sell securities, to take the following two criteria: (1) after each for securities trading stocks, the market clinch a deal the closing price is less than $13 per share for

45、 up to 2 business days, suspended securities sold; when the closing price of the transaction has risen to more than 13 yuan in a row for six business days, the stock margin trading is resumed(2) for each stock that can be traded on the securities, the shares of the shares listed in the shares listed

46、 at 8% of the listed shares,suspension of securities sales; when the balance is less than 5 per cent, the margin trading is resumedof illegal securities lending and borrowing, including illegal selling securities, shall be sentenced to fixed-term acts column of not more than 2 years, detention and/o

47、r and fine less than rmb 150000 (article 175 of the securities exchange act)in september 1998, taiwan，s "ministry of finance announced that the sale would not be lower than the previous day's closing price to maintain market stabilityto sum up, the securities laws of the mainland are prohib

48、ited from selling short selling although the securities laws in hong kong and taiwan has conditions allow short sale of securities (securities trading), but imposes many constraints, and severe punishment for illegal shorting, and even criminal penalties especially after the financial crisis in sout

49、heast asia, more to strengthen the control in short selling, in order to avoid the stock market by the international speculators in a planned way and cross-market manipulation, maintain the normal order of securities marketof course, there is a difference between hong kong and taiwan，s regulatory me

50、asures for example, hong kong is restricted to the 21 types of stock that are in flux from short sellers; and taiwan is more wide, in fact, there are two broad categories: listed more than six mon ths, the stock price above the par value of the first kind of ordinary shares and last year's busin

51、ess interests and profit before tax accounted for more than 6% of the paid-in capital of the second category of ordinary shares, all can become the object of securities in terms of margin, taiwan is also more than hong kong, and taiwan has a six-month deadline for margin trading. but in terms of pri

52、ce fixing measures and penalties, hong kong is wider than taiwansecond, about the market manipulationmainland china, hong kong and taiwan have little to do with manipulating market behavior it's just a different legislative ski 11.article 135, 136 and 137 of hong kong securities regulations stip

53、ulate market manipulation:create a false trade (the securities ordinance 135 (1) (a).create a false market (the securities ordinance 135 (1) (b)stipulated in article 135 (2), when the market price of any securities through the following methods have been pushed up, down, or stability, or in terms of

54、 the securities, constitute manufacturing false market:(a) by some force each other to sell and buy, the purpose is to ensure that this kind of securities to achieve a certain market prices, but the market prices, on the issue of the securities law of assets or profits of the corporation(ineluding e

55、xpected profit), is no good reason to support;(b) any act that prevents or restricts the use of the purchase or sale of securities to negotiate market prices; or(c) use any fictitious transaction or means or any form of deception or deceptionsecurities trading that does not involve the conversion of

56、 beneficial ownership; hedge trading (securities ordinance 135 (3) (4).circulating or disseminating data (the securities ordinance 135 (5).use fraud or deception (article 136 of the securities ordinance)securities price limitation (article 137 of the securities ordinance)article 139 of the securitie

57、s ordinance, anyone who violates any of the provisions of 135, 136 or 137 is a crime, a fine of hk $50,000 or imprisonment of less than two yearstypical cases are: wang mou in july 1990 selling control of 51% of company d to river investment co., ltd(listed company), the union is in the form of shar

58、es instead of cash, to wang mou issued 38. 9 million shares, accounting for 19. 8% of the shares issued for river union between january and september 1991, share prices plunged because of the gulf war wang mou during this period through different way several times with the same price for buying and

59、selling shares, the same number of river were bought more than 4990 shares, sold more than 8390 shares, net selling about 34 million shares, in multiple business activities, earning nearly hk $23 mill ion. hong kong，s local court ruled that wang had deliberately bought and sold his stake in the stock exchange, creating a false impression that he was trading on the stock exchangeso that i can sell my own shares at higher prices judge ruled last wang mou marke