In practice,the administrative enforcement against leak-based insider trading involves several issues including the selective absence of penalties for the leaker and overly strict standards for identifying joint violations by the leaker and the recipient.This is not due to a deliberate choice by the securities enforcement agency but rather the objective difficulty in establishing a causal relationship.Considering that separately examining the mere act of leaking information and the subsequent trading behavior does not facilitate a comprehensive crackdown on leak-based insider trading,it is essential to establish a rigorous and reasonable set of identification standards and adjudication rules for joint violations in leak-based insider trading.By drawing on the three-tier system of criminal law,this paper analyzes the three elements of"constitutive element appropriateness,""illegality,"and"culpability"in the joint violation of leak-based insider trading.The paper states that in the determination phase,a"behavioral joint standard"should be adopted to examine the actions of the leaker and the recipient as a whole.This action initially assesses whether the conditions for insider trading are met and further analyzes whether the combined actions of the leaker and the recipient have harmed the interests of the contemporaneous trading counterparty.In the adjudication phase,the principle of"responsibility doctrine"should be applied separately to evaluate the subjective intent of both the leaker and the recipient,and to assign accountability and impose penalties accordingly.
国家科技期刊平台
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