| Notice of the Supreme People's Procuratorate on Issuing the Tenth Group of Guiding Cases of the Supreme People's Procuratorate | | 最高人民检察院关于印发最高人民检察院第十批指导性案例的通知 |
| (No.10 [2018] of the Supreme People's Procuratorate) | | （高检发研字[2018]10号） |
| The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Procuratorate of the People's Liberation Army; and the People's Procuratorate of Xinjiang Production and Construction Corps: | | 各省、自治区、直辖市人民检察院，解放军军事检察院，新疆生产建设兵团人民检察院： |
| Upon decision of the 2nd Session of the Thirteenth Procuratorial Committee of the Supreme People's Procuratorate on June 13, 2018, the case about Zhu Weiming's manipulation of the securities market and other two guiding cases (Cases No. 39 to 41 of the Supreme People's Procuratorate) are hereby issued as the tenth group of guiding cases for reference in the trial of similar cases. | | 经2018年6月13日最高人民检察院第十三届检察委员会第二次会议决定，现将朱炜明操纵证券市场案等三件指导性案例（检例第39－41号）作为第十批指导性案例发布，供参照适用。 |
| Supreme People's Procuratorate | | 最高人民检察院 |
| July 3, 2018 | | 2018年7月3日 |
| Tenth Group of Guiding Cases of the Supreme People's Procuratorate | | 最高人民检察院第十批指导性案例 |
| People v. Zhu Weiming for Manipulating the Securities Market | | 朱炜明操纵证券市场案 |
| (Case No. 39 of the Supreme People's Procuratorate) | | （检例第39号） |
| [Keywords] | | 【关键词】 |
| Manipulation of the securities market; “scalping”; public stock recommendation | | 操纵证券市场 “抢帽子”交易 公开荐股 |
| [Basic Facts] | | 【基本案情】 |
| Defendant: Zhu Weiming, male, born in July 1982, former securities broker of Shanghai Longhua West Road Securities Exchange of China Development Bank Securities LLC (hereinafter referred to as the “Security Exchange of CDB”) and special guest of the program Money Talk of Yi Cai of Shanghai Television Station (hereinafter referred to as Money Talk). | | 被告人朱炜明，男，1982年7月出生，原系国开证券有限责任公司上海龙华西路证券营业部（以下简称国开证券营业部）证券经纪人，上海电视台第一财经频道《谈股论金》节目（以下简称《谈股论金》节目）特邀嘉宾。 |
| During the period from February 1, 2013 to August 26, 2014 when defendant Zhu Weiming worked with the Security Exchange of CDB as a securities broker, before the broadcasting of the TV program Money Talk where he has served as a special guest for multiple times, he successively bought several stocks by using three security accounts under his actual control and in the program Money Talk broadcast on that day or the subsequent day, he conducted public evaluation, prediction, and recommendation of the stocks he previously bought as a special guest. Within one to two trading days after the premiere of the program, he sold off the relevant stocks, in which way the trading volumes and prices of the aforesaid stocks were artificially affected and profits were gained. It was found upon investigation that the amount of stocks he bought was over CNY20.9422 million, the amount of stocks he sold was over CNY21.6970 million, and the illegal profits amounted to over CNY754,800. | | 2013年2月1日至2014年8月26日，被告人朱炜明在任国开证券营业部证券经纪人期间，先后多次在其担任特邀嘉宾的《谈股论金》电视节目播出前，使用实际控制的三个证券账户买入多支股票，于当日或次日在《谈股论金》节目播出中，以特邀嘉宾身份对其先期买入的股票进行公开评价、预测及推介，并于节目首播后一至二个交易日内抛售相关股票，人为地影响前述股票的交易量和交易价格，获取利益。经查，其买入股票交易金额共计人民币2094.22万余元，卖出股票交易金额共计人民币2169.70万余元，非法获利75.48万余元。 |
| [Key Point] | | 【要旨】 |
| Where any securities company, securities advisory body, or professional intermediary as well as its staff members buy or hold securities in violation of the prohibitive regulations on practitioners and after making public evaluation, prediction, or investment proposals, conduct reverse operations through the anticipated market fluctuations for the purpose of seeking profits, and the circumstances are serious, they should be subject to criminal liability for the crime of manipulating the securities market. | | 证券公司、证券咨询机构、专业中介机构及其工作人员违背从业禁止规定，买卖或者持有证券，并在对相关证券作出公开评价、预测或者投资建议后，通过预期的市场波动反向操作，谋取利益，情节严重的，以操纵证券市场罪追究其刑事责任。 |
| [Charge and Proof of Guilt] | | 【指控与证明犯罪】 |
| On November 29, 2016, the Shanghai Municipal Public Security Bureau transferred Zhu Weiming to the No. 1 Branch of the People's Procuratorate of Shanghai Municipality for review and prosecution for the suspected crime of manipulating the securities market. | | 2016年11月29日，上海市公安局以朱炜明涉嫌操纵证券市场罪移送上海市人民检察院第一分院审查起诉。 |
| At the stage of review and prosecution, Zhu Weiming contended that: (1) The securities accounts involved were actually controlled by his father surnamed Zhu and he did not propose or participate in the trading of the stocks involved. (2) In the broadcasting of the TV program, the names and codes of stocks were concealed and only K-line diagrams and stock features and information were displayed and described, which were not public evaluation, prediction, and recommendation of individual stocks. (3) The funds in the accounts involved were family property, from which he did not benefit. | | 审查起诉阶段，朱炜明辩称：1.涉案账户系其父亲朱某实际控制，其本人并未建议和参与相关涉案股票的买卖；2.节目播出时，已隐去股票名称和代码，仅展示K线图、描述股票特征及信息，不属于公开评价、预测、推介个股；3.涉案账户资金系家庭共同财产，其本人并未从中受益。 |
| Upon review, the procuratorial organ held that: The existing evidence was sufficient to determine that the criminal suspect has publicly committed an act of stock recommendation in the media and before and after the public recommendation, there were reverse operations of the stocks involved in the securities accounts involved. However, the actual control relationship between the criminal suspect and the accounts involved, whether the public recommendation constituted “public stock recommendation” in the trade-based manipulation of “scalping” as well as whether such act could be identified as “manipulation of the securities market,” and other issues required further investigation. With respect to the issues requiring further investigation, the No. 1 Branch of the People's Procuratorate of Shanghai Municipality sent the case back to the Public Security Bureau of Shanghai Municipality for supplementary investigation on January 13 and March 24, 2017 and required the public security organ's supplementation of the IP addresses of the criminal suspect's Taobao account and e-bank account and the MAC address (also known as the hardware device address for defining the location of the network device) and screening and comparison of IP addresses in the securities trading of the accounts involved; correlation comparison between the funds inflow and outflow in the accounts involved and the funds transfer in the criminal suspect's personal bank account; and further targeted inquiry of the criminal suspect's father surnamed Zhu on key details for the purpose of verifying Zhu Weiming's contentions; and the securities regulatory department should raise identification opinions on whether the acts of the criminal suspect of this case constituted “public recommendation of stocks” and “manipulation of the securities market.” | | 检察机关审查认为，现有证据足以认定犯罪嫌疑人在媒体上公开进行了股票推介行为，并且涉案账户在公开推介前后进行了涉案股票反向操作。但是，犯罪嫌疑人与涉案账户的实际控制关系，公开推介是否构成“抢帽子”交易操纵中的“公开荐股”以及行为能否认定为“操纵证券市场”等问题，有待进一步查证。针对需要进一步查证的问题，上海市人民检察院第一分院分别于2017年1月13日、3月24日二次将案件退回上海市公安局补充侦查，要求公安机关补充查证犯罪嫌疑人的淘宝、网银等IP地址、MAC地址（硬件设备地址，用来定义网络设备的位置），并与涉案账户证券交易IP地址做筛选比对；将涉案账户资金出入与犯罪嫌疑人个人账户资金往来做关联比对；进一步对其父朱某在关键细节上做针对性询问，以核实朱炜明的辩解；由证券监管部门对本案犯罪嫌疑人的行为是否构成“公开荐股”“操纵证券市场”提出认定意见。 |
| Upon supplementary investigation, the Public Security Bureau of Shanghai Municipality further collected testimonies of Zhu Weiming's father surnamed Zhu and other witnesses, the letter of identification of the China Securities Regulatory Commission (“CSRC”) on the nature of Zhu Weiming's manipulation of the securities market, the written opinions on judicial accounting appraisal, and other evidence. It was identified in the letter of identification issued by the CSRC that: From February 1, 2013 to August 26, 2014, Zhu Weiming made public evaluation and prediction of 15 stocks by means of explicitly instructing the names of stocks or introducing identifying information of stocks in the program Money Talk. Through the three securities accounts under his actual control, Zhu Weiming bought the recommended stocks one to two trading days before or on the day of broadcasting of the program, with the trading amount of over CNY20.9422 million and sold such stocks one to two trading days after the broadcasting of the program, with the trading amount of over CNY21.6970 million. Zhu Weiming made a profit of over CNY754,800. Both the trading prices and volumes of the stocks recommended by Zhu Weiming rose significantly on the subsequent day, which obviously deviated from the industry plate and market trends. His acts constituted manipulation of the securities market, disturbed the order of the securities market, and caused serious social impacts. | | 经补充侦查，上海市公安局进一步收集了朱炜明父亲朱某等证人证言、中国证监会对朱炜明操纵证券市场行为性质的认定函、司法会计鉴定意见书等证据。中国证监会出具的认定函认定：2013年2月1日至2014年8月26日，朱炜明在《谈股论金》节目中通过明示股票名称或描述股票特征的方法，对15支股票进行公开评价和预测。朱炜明通过其控制的三个证券账户在节目播出前一至二个交易日或当天买入推荐的股票，交易金额2094.22万余元，并于节目播出后一至二个交易日内卖出上述股票，交易金额2169.70万余元，获利75.48万余元。朱炜明所荐股票次日交易价量明显上涨，偏离行业板块和大盘走势。其行为构成操纵证券市场，扰乱了证券市场秩序，并造成了严重社会影响。 |
| In light of evidence collected in a supplementary manner, the case-handling personnel of the No. 1 Branch of the People's Procuratorate of Shanghai Municipality brought Zhu Weiming before the court again and listened to the opinions of his defense lawyer. In the face of the evidence demonstrated, Zhu Weiming admitted that he publicly recommended stocks in the TV program and claimed that he knew that the prices of stocks he recommended would rise after the broadcasting of the TV program and he proposed that his father surnamed Zhu should buy the 15 stocks involved before the public recommendation of such stocks and immediately sell such stocks after the broadcasting of the TV program for the purpose of seeking profits. However, he denied the accused fact that he actually controlled the securities accounts involved to trade stocks. | | 结合补充收集的证据，上海市人民检察院第一分院办案人员再次提讯朱炜明，并听取其辩护律师意见。朱炜明在展示的证据面前，承认其在节目中公开荐股，称其明知所推荐股票价格在节目播出后会有所上升，故在公开荐股前建议其父朱某买入涉案15支股票，并在节目播出后随即卖出，以谋取利益。但对于指控其实际控制涉案账户买卖股票的事实予以否认。 |
| With respect to Zhu Weiming's contention, the case-handling personnel produced the relevant evidence to Zhu Weiming and his defender and clarified one by one the proving relationship between such evidence and Zhu Weiming's acts. (1) The IP address for account logins and transactions was mostly the office location of Zhu Weiming and was consistent with Zhu Weiming's travel records and other computer data tracks. For example, on July 17 and 18, 2014, the IP address for login and transactions of Zhu's securities account involved was in Chongqing Municipality, which was consistent with Zhu Weiming's travel records. (2) There were frequent fund exchanges between the three accounts involved and Zhu Weiming's account, some initial funds were from Zhu Weiming's account, and some funds were transferred to Zhu Weiming's bank account for his personal consumption, all of which proved that the funds in the accounts involved were controlled by Zhu Weiming. Upon demonstration of the aforesaid evidence, Zhu Weiming confessed to the fact that he has committed “scalping” and made a profit by manipulating the securities accounts of others and trading stocks. | | 针对其辩解，办案人员将相关证据向朱炜明及其辩护人出示，并一一阐明证据与朱炜明行为之间的证明关系。1.账户登录、交易IP地址大量位于朱炜明所在的办公地点，与朱炜明出行等电脑数据轨迹一致。例如，2014年7月17日、18日，涉案的朱某证券账户登录、交易IP地址在重庆，与朱炜明的出行记录一致。2.涉案三个账户之间与朱炜明个人账户资金往来频繁，初始资金有部分来自于朱炜明账户，转出资金中有部分转入朱炜明银行账户后由其消费，证明涉案账户资金由朱炜明控制。经过上述证据展示，朱炜明对自己实施“抢帽子”交易操纵他人证券账户买卖股票牟利的事实供认不讳。 |
| On May 18, 2017, the No. 1 Branch of the People's Procuratorate of Shanghai Municipality instituted a public prosecution in the No. 1 Intermediate People's Court of Shanghai Municipality against defendant Zhu Weiming for committing the crime of manipulating the securities market. On July 20 of the same year, the No. 1 Intermediate People's Court of Shanghai Municipality held a public trial of this case. | | 2017年5月18日，上海市人民检察院第一分院以被告人朱炜明犯操纵证券市场罪向上海市第一中级人民法院提起公诉。7月20日，上海市第一中级人民法院公开开庭审理了本案。 |
| At the stage of court investigation, the public prosecutor read the charging document, in which defendant Zhu Weiming was accused of violating the prohibitive regulations on practitioners and manipulating the securities market by means of “scalping” for seeking profits and his acts have constituted a crime of manipulating the securities market. With respect to the aforesaid accused criminal facts, the public prosecutor produced four groups of evidence: | | 法庭调查阶段，公诉人宣读起诉书指控被告人朱炜明违反从业禁止规定，以“抢帽子”交易的手段操纵证券市场谋取利益，其行为构成操纵证券市场罪。对以上指控的犯罪事实，公诉人出示了四组证据予以证明： |
| The first group of evidence concerns the identity of defendant Zhu Weiming, including: (1) the employment contract and the agency contract concluded by and between CDB and Zhu Weiming and other documentary evidence on the working relationships; (2) testimonies of witnesses including Chen, editor of the TV program Money Talk; (3) the household registration information, the professional qualification certificate, and other documentary evidence; and (4) statement of defendant Zhu Weiming, which proved that from February 2013 to August 2014 when Zhu Weiming worked with the Securities Exchange of CDB as a securities broker, he has been invited to assume a special guest of the program Money Talk for multiple times. | | 一是关于被告人朱炜明主体身份情况的证据。包括：1.国开证券公司与朱炜明签订的劳动合同、委托代理合同等工作关系书证；2.《谈股论金》节目编辑陈某等证人证言；3.户籍资料、从业资格证书等书证；4.被告人朱炜明的供述。证明：朱炜明于2013年2月至2014年8月担任国开证券营业部证券经纪人期间，先后多次受邀担任《谈股论金》节目特邀嘉宾。 |
| The second group of evidence concerns the abnormal login of the securities accounts involved, including: (1) testimonies of witnesses including Zhu; (2) the entry-exit records and domestic travel records of Zhu Weiming and other documentary evidence; (3) the written opinions on judicial accounting appraisal and search transcripts; and (4) the statement of defendant Zhu Weiming, which proved that from February 2013 to August 2014, the actual controller of the three securities accounts involved of “Zhu,” “Sun,” and “Zhang” was Zhu Weiming. | | 二是关于涉案账户登录异常的证据。包括：1.证人朱某等证人的证言；2.朱炜明出入境及国内出行记录等书证；3.司法会计鉴定意见书、搜查笔录等；4.被告人朱炜明的供述。证明：2013年2月至2014年8月，“朱某”“孙某”“张某”三个涉案证券账户的实际控制人为朱炜明。 |
| The third group of evidence concerns abnormal transactions in the accounts involved, including (1) testimonies of Chen and other witnesses; (2) documentary evidence including the written decision on administrative penalty issued by the CSRC as well as the relevant identification opinions and investigation reports; (3) the written opinions on judicial accounting appraisal; (4) optical disks of the TV program videos, QQ group chatting records, and other audio-visual materials and electronic data; and (5) the statement of defendant Zhu Weiming, which proved that the fifteen stocks recommended by Zhu Weiming in the TV program were bought by him one to two trading days before the broadcasting of the program or on the day of broadcasting and were sold within one to two trading days after the broadcasting of the program. | | 三是关于涉案账户交易异常的证据。包括：1.证人陈某等证人的证言；2.证监会行政处罚决定书及相关认定意见、调查报告等书证；3.司法会计鉴定意见书；4.节目视频拷贝光盘、QQ群聊天记录等视听资料、电子数据；5.被告人朱炜明的供述。证明：朱炜明在节目中推荐的15支股票，均被其在节目播出前一至二个交易日或播出当天买入，并于节目播出后一至二个交易日内卖出。 |
| The fourth group of evidence concerns sources of funds in the securities accounts involved and profit-making, including (1) the testimony of witness surnamed Zhu; (2) the written notice of the CSRC on inquiry and other documentary evidence; (3) the written opinions on judicial accounting appraisal; and (4) the statement of defendant Zhu Weiming. The aforesaid evidence proved that: after Zhu Weiming's public recommendation of stocks, the trading volumes and prices of such stocks increased significantly. A majority of initial transaction funds in the three securities accounts of “Zhu,” “Sun,” and “Zhang” were from Zhu Weiming and there were frequent financial exchanges between the three accounts and Zhu Weiming's personal bank account. During the period, the cumulative transaction amount in the aforesaid accounts was over CNY42.6392 million and the profit made was over CNY754,800. | | 四是关于涉案证券账户资金来源及获利的证据。包括：1.证人朱某的证言；2.证监会查询通知书等书证；3.司法会计鉴定意见书等；4.被告人朱炜明的供述。证明：朱炜明在公开推荐股票后，股票交易量、交易价格涨幅明显。“朱某”“孙某”“张某”三个证券账户交易初始资金大部分来自朱炜明，且与朱炜明个人账户资金往来频繁。上述账户在涉案期间累计交易金额人民币4263.92万余元，获利人民币75.48万余元。 |
| At the stage of court debate, the public prosecutor gave the following public prosecution opinions: | | 法庭辩论阶段，公诉人发表公诉意见： |
| First, identification on the nature of this case. Where a securities company, securities advisory agency, or professional intermediary as well as any of their staff members trades or holds the relevant securities and makes public evaluation, prediction, or investment proposal for the securities or their issuers or listed companies so that economic benefits may be sought through the anticipated market fluctuations, such act was the trade-based manipulation of “scalping.” In accordance with the provisions of item (4), paragraph 1 of Article 182 of the Criminal Law, such act was “manipulation of the securities market by any other means.” With serious circumstances, it constituted the crime of manipulating the securities market. | | 第一，关于本案定性。证券公司、证券咨询机构、专业中介机构及其工作人员，买卖或者持有相关证券，并对该证券或其发行人、上市公司公开作出评价、预测或者投资建议，以便通过期待的市场波动取得经济利益的行为是“抢帽子”交易操纵行为。根据刑法第一百八十二条第一款第（四）项的规定，属于“以其他方法操纵”证券市场，情节严重的，构成操纵证券市场罪。 |
| Second, identification on the control of accounts of other persons. By taking evidence in this case into full account, it may be identified that through the three securities accounts of “Zhu,” “Sun,” and “Zhang” actually under his control, Zhu Weiming bought 15 stocks involved before the public recommendation of stocks and he soon sold such stocks after the public recommendation for seeking profits. Both the prices and volumes of the stocks involved were actually affected by the recommendation of stocks and Zhu Weiming actually made a profit of over CNY750,000. | | 第二，关于控制他人账户的认定。综合本案证据，可以认定朱炜明通过实际控制的“朱某”“孙某”“张某”三个证券账户在公开荐股前买入涉案15支股票，荐股后随即卖出谋取利益，涉案股票价量均因荐股有实际影响，朱炜明实际获利75万余元。 |
| Third, identification on the public recommendation of stocks. Based on evidence, Zhu Weiming explicitly instructed the names of stocks or introduced identifying information of stocks and displayed K-line diagrams in the TV program. Investors may, based on the aforesaid information, determine the names of stocks involved. The aforesaid acts of Zhu Weiming were public evaluation, prediction, and recommendation of stocks involved in the TV program and it may be determined as public recommendation of stocks. | | 第三，关于公开荐股的认定。结合证据，朱炜明在电视节目中，或明示股票名称，或介绍股票标识性信息、展示K线图等，投资者可以依据上述信息确定涉案股票名称，系在电视节目中对涉案股票公开作出评价、预测、推介，可以认定构成公开荐股。 |
| Fourth, sentencing proposal for this case. In accordance with the provisions of Article 182 of the Criminal Law, the acts of defendant Zhu Weiming constituted the crime of manipulating the securities market and the sentencing should be within the range from a fixed-term imprisonment of not more than five years to criminal detention with a fine of not less than one time but not more than five times the illegal income according to the law. The public prosecutor proposed that defendant Zhu Weiming should be sentenced to a fixed-term imprisonment of not more than three years with a fine of not less than one time the illegal income as appropriate. | | 第四，关于本案量刑建议。根据刑法第一百八十二条的规定，被告人朱炜明的行为构成操纵证券市场罪，依法应在五年以下有期徒刑至拘役之间量刑，并处违法所得一倍以上五倍以下罚金。建议对被告人朱炜明酌情判处三年以下有期徒刑，并处违法所得一倍以上的罚金。 |
| Defendant Zhu Weiming and his defender raised no objection to the public prosecution opinions and Zhu Weiming declared in court that he was willing to pay back the illegal income. The defender proposed that Zhu Weiming should be given a lighter punishment considering that he had a positive attitude in pleading guilty. | | 被告人朱炜明及其辩护人对公诉意见没有异议，被告人当庭表示愿意退缴违法所得。辩护人提出，考虑被告人认罪态度好，建议从轻处罚。 |
| Upon trial, the No. 1 Intermediate People's Court of Shanghai Municipality identified that the evidence submitted by the public prosecutor could be mutually verified and such evidence should be confirmed. By taking the criminal facts and circumstances of this case into full account, Zhu Weiming should be given a corresponding penalty. On July 28, 2017, the No. 1 Intermediate People's Court of Shanghai Municipality rendered a judgment of first instance that defendant Zhu Weiming should be sentenced to a fixed-term imprisonment of 11 months with a fine of CNY760,000 for committing the crime of manipulating the securities market and his illegal income should be confiscated. After the judgment of first instance was pronounced, defendant did not appeal and the judgment has come into force. | | 法庭经审理，认定公诉人提交的证据能够相互印证，予以确认。综合考虑全案犯罪事实、情节，对朱炜明处以相应刑罚。2017年7月28日，上海市第一中级人民法院作出一审判决，以操纵证券市场罪判处被告人朱炜明有期徒刑十一个月，并处罚金人民币76万元，其违法所得予以没收。一审宣判后，被告人未上诉，判决已生效。 |
| [Guiding Significance] | | 【指导意义】 |
| Where a securities company, securities advisory agency, or professional intermediary as well as any of its staff members makes a public evaluation or prediction of the securities or their issuers or listed companies or puts forward investment proposals in violation of the prescribed provisions after trading or holding the relevant securities and seeks profit through the anticipated market fluctuations, it constitutes a trade-based manipulation known as “scalping.” The agencies that give investment advisory opinions or securities practitioners usually have social awareness to some extent. If they issue guiding information through an influential communication platform, it is easy to have an effect on common investors' trade decisions. After the release of information, they make a profit by implementing reverse transactions by utilizing fluctuations in securities prices, which disrupts the administration order of the securities market and violates the principles of openness, fairness, and impartiality. Where the social harmfulness is great and circumstances are serious, the act constitutes a crime of manipulating the securities market. | | 证券公司、证券咨询机构、专业中介机构及其工作人员，违反规定买卖或者持有相关证券后，对该证券或者其发行人、上市公司作出公开评价、预测或者提出投资建议，通过期待的市场波动谋取利益的，构成“抢帽子”交易操纵行为。发布投资咨询意见的机构或者证券从业人员往往具有一定的社会知名度，他们借助影响力较大的传播平台发布诱导性信息，容易对普通投资者交易决策产生影响。其在发布信息后，又利用证券价格波动实施与投资者反向交易的行为获利，破坏了证券市场管理秩序，违反了证券市场公开、公平、公正原则，具有较大的社会危害性，情节严重的，构成操纵证券市场罪。 |
| Securities-related crimes have such features as being professional, concealing, and indirect. When handling this type of cases, the procuratorial organ should, according to characteristics of cases about securities-related crime, guide the public security organ in using securities transactions records, fund flow, and other issues as the entry points, comprehensively collecting crime-related documentary evidence, electronic data, testimonies of witnesses, and other evidence, and carrying out evidence examination in light of the case characteristics. With respect to documentary evidence, importance should be attached to examination of evidence involving securities transactions records and evidence on trading capacity, trading volume, concluded price, and fund flow. With respect to electronic data, importance should be attached to examination of whether the collection procedure is legitimate, whether necessary preservation measures should be taken, whether such electronic data has been falsified, and whether such electronic data gets infected by virus. With respect to testimonies of witnesses, importance should be attached to examination of the relationship between the witness and the criminal suspect and whether such testimonies can be verified with objective evidence. | | 证券犯罪具有专业性、隐蔽性、间接性等特征，检察机关办理该类案件时，应当根据证券犯罪案件特点，引导公安机关从证券交易记录、资金流向等问题切入，全面收集涉及犯罪的书证、电子数据、证人证言等证据，并结合案件特点开展证据审查。对书证，要重点审查涉及证券交易记录的凭据，有关交易数量、交易额、成交价格、资金走向等证据。对电子数据，要重点审查收集程序是否合法，是否采取必要的保全措施，是否经过篡改，是否感染病毒等。对证人证言，要重点审查证人与犯罪嫌疑人的关系，证言能否与客观证据相印证等。 |
| In the case-handling, the criminal suspect or defendant or the defender thereof often contends that he or she is not the actual controller or operator of the account involved. The procuratorial organ may start with the coincidence and consistency between fund exchange records of the actor, the MAC address (hardware device address), IP address and Internet access paths, the closeness between identities and funds, the high degree of relevance between trading of the stocks involved and public recommendation of such stocks in both timepoints and fund ratios, and whether the testimonies of the relevant witnesses are consistent with the details, establish a rigorous evidence system, and determine the actual control relationship between defendant and the accounts involved. | | 办案中，犯罪嫌疑人或被告人及其辩护人经常会提出涉案账户实际控制人及操作人非其本人的辩解。对此，检察机关可以通过行为人资金往来记录，MAC地址（硬件设备地址）、IP地址与互联网访问轨迹的重合度与连贯性，身份关系和资金关系的紧密度，涉案股票买卖与公开荐股在时间及资金比例上的高度关联性，相关证人证言在细节上是否吻合等入手，构建严密证据体系，确定被告人与涉案账户的实际控制关系。 |
| Cases about suspected crimes in illegal securities activities are mostly transferred by the securities regulatory departments to the public security organs. In the review of cases, the people's procuratorate may strengthen contact and communication with the securities regulatory department. The physical evidence, documentary evidence, audio-visual materials, electronic data, and other evidentiary materials collected by the securities regulatory department in administrative law enforcement, investigation, and case handling may be used as evidence in criminal actions. By handling cases about securities-related crimes, the procuratorial organ may propose that the securities regulatory department should strengthen supervision over the capital market and the relevant institutional improvement with respect to problems reflected in such cases. | | 非法证券活动涉嫌犯罪的案件，来源往往是证券监管部门向公安机关移送。审查案件过程中，人民检察院可以与证券监管部门加强联系和沟通。证券监管部门在行政执法和查办案件中收集的物证、书证、视听资料、电子数据等证据材料，在刑事诉讼中可以作为证据使用。检察机关通过办理证券犯罪案件，可以建议证券监管部门针对案件反映出的问题，加强资本市场监管和相关制度建设。 |
| [Relevant Legal Provisions] | | 【相关规定】 |
Article 182 of the Criminal Law of the People's Republic of China
．．．．．． | | 《中华人民共和国刑法》第一百八十二条
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