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Guiding Case No. 61: Case concerning Ma Le's Trading by Using Undisclosed Information (case concerning trading by using undisclosed information)
指导案例61号:马乐利用未公开信息交易案
【法宝引证码】

Guiding Case No. 61: Case concerning Ma Le's Trading by Using Undisclosed Information 

指导案例61号:马乐利用未公开信息交易案

(Issued on June 30, 2016 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2016年6月30日发布)

Guiding Case No. 61 指导案例61号
Keywords 关键词
criminal; crime of trading by using undisclosed information; invocation of statutory sentences; especially serious circumstances 刑事/利用未公开信息交易罪/援引法定刑/情节特别严重
Key Points of Judgment 裁判要点
The invocation of statutory sentences for the crime of trading by using undisclosed information as prescribed in paragraph 4 of Article 180 of the Criminal Law shall be the invocation of all statutory sentences for the crime of engaging in insider trading and divulging inside information as prescribed in paragraph 1 thereof. That is to say, there shall be two circumstances, “serious circumstances” and “especially serious circumstances,” and two sentencing ranges for the crime of trading by using undisclosed information. 刑法一百八十条第四款规定的利用未公开信息交易罪援引法定刑的情形,应当是对第一款内幕交易、泄露内幕信息罪全部法定刑的引用,即利用未公开信息交易罪应有“情节严重”“情节特别严重”两种情形和两个量刑档次。
Relevant Legal Provisions 相关法条
Article 180 of the Criminal Law of the People's Republic of China 中华人民共和国刑法》第180条
Basic Facts 基本案情
From March 9, 2011 to May 30, 2013, defendant Ma Le served as the manager of the selected Bosera stock and security investment funds under Bosera Funds Management Co., Ltd., fully responsible for the market of investment funds and investment stocks. He mastered such undisclosed information as the underlying stocks in the trading of selected Bosera stock and security investment funds, the trading hours, and the trading amount. During the term of office, by using the aforesaid undisclosed information he mastered, Ma Le engaged in securities trading activities related to the said information, operated three stock accounts of Jin, A Yan, and B Yan under his control, and placed orders through an anonymous Easyown phone card he temporarily purchased. He traded 76 identical stocks through “selected Bosera” fund accounts under his management (one to five trading days) in advance, simultaneously, or slightly later (for one to two trading days), with the accumulative trading amount of over 1.05 billion yuan and illegal profits of 18,833,374.74 yuan. On July 17, 2013, Ma Le voluntarily surrendered himself to the Public Security Bureau of Shenzhen City and truthfully confessed to his crime after his apprehension, which was voluntary surrender; Ma Le showed repentance, the illicit income could be refunded in full amount from seized or frozen assets, and Ma Le could also pay the fine imposed on him in full amount. 2011年3月9日至2013年5月30日期间,被告人马乐担任博时基金管理有限公司旗下的博时精选股票证券投资经理,全权负责投资基金投资股票市场,掌握了博时精选股票证券投资基金交易的标的股票、交易时间和交易数量等未公开信息。马乐在任职期间利用其掌控的上述未公开信息,从事与该信息相关的证券交易活动,操作自己控制的“金某”“严某甲”“严某乙”三个股票账户,通过临时购买的不记名神州行电话卡下单,先于(1-5个交易日)、同期或稍晚于(1-2个交易日)其管理的“博时精选”基金账户买卖相同股票76只,累计成交金额10.5亿余元,非法获利18833374.74元。2013年7月17日,马乐主动到深圳市公安局投案,且到案之后能如实供述其所犯罪行,属自首;马乐认罪态度良好,违法所得能从扣押、冻结的财产中全额返还,判处的罚金亦能全额缴纳。
Judgment 裁判结果
In the criminal judgment (No. 27 [2014], First, Criminal DivisionII, IPC, Shenzhen), the Intermediate People's Court of Shenzhen City, Guangdong Province held that the acts of defendant Ma Le constituted a crime of trading by using undisclosed information; however, the Criminal Law did not prescribe “especially serious circumstances” for the crime of trading by using undisclosed information. Therefore, the acts of Ma Le could only be determined as “serious circumstances.” For his voluntary surrender, Ma Le may be given a lighter punishment according to the law; Ma Le pled guilty, returned all illicit income, paid the fine in full amount, and actually showed repentance; besides, it was found after investigation and evaluation by the Division of Community Correction, Resettlement, Assistance, and Education under the Justice Bureau of Futian District, Shenzhen City that Ma Le's probation had no major adverse impact on the community where he resided. Therefore, Ma Le satisfied conditions for the application of probation. Therefore, the Intermediate People's Court of Shenzhen City sentenced Ma Le to a fixed-term imprisonment of three year with a five-year suspension of execution and imposed a fine of 18.84 million yuan on him; recovered the illicit income of 18,833,374.74 yuan according to the law, and turned it over to the state treasury. 广东省深圳市中级人民法院(2014)深中法刑二初字第27号刑事判决认为,被告人马乐的行为已构成利用未公开信息交易罪。但刑法中并未对利用未公开信息交易罪规定“情节特别严重”的情形,因此只能认定马乐的行为属于“情节严重”。马乐自首,依法可以从轻处罚;马乐认罪态度良好,违法所得能全额返还,罚金亦能全额缴纳,确有悔罪表现;另经深圳市福田区司法局社区矫正和安置帮教科调查评估,对马乐宣告缓刑对其所居住的社区没有重大不良影响,符合适用缓刑的条件。遂以利用未公开信息交易罪判处马乐有期徒刑三年,缓刑五年,并处罚金人民币1884万元;违法所得人民币18833374.74元依法予以追缴,上缴国库。
After the judgment was pronounced, the People's Procuratorate of Shenzhen City filed an appeal and held that the acts of defendant Ma Le should be determined as falling under especially serious criminal circumstances and Ma Le should be punished according to the sentencing range of “especially serious circumstances.” The judgment of first instance was erroneous in the application of law and obviously inappropriate in sentencing. Therefore, it should be reversed according to the law. 宣判后,深圳市人民检察院提出抗诉认为,被告人马乐的行为应认定为犯罪情节特别严重,依照“情节特别严重”的量刑档次处罚。一审判决适用法律错误,量刑明显不当,应当依法改判。
In the criminal ruling (No. 137 [2014], Final, Criminal DivisionII, HPC, Guangdong), the Higher People's Court of Guangdong Province held that: Under paragraph 4 of Article 180 of the Criminal Law, “(any practitioner of a stock exchange, a futures exchange, a securities company, a futures brokerage company, a fund management company, a commercial bank, an insurance company or any other financial institution or any staff member of the relevant regulatory department or industry association) engages in trading by using undisclosed information and the circumstances are serious, such practitioner or staff member should be punished under paragraph 1 thereof”; however, there are no provisions on “especially serious circumstances” for the crime of trading by using undisclosed information in this clause; under paragraph 1 thereof, where the circumstances are serious, such practitioner or staff member should be sentenced to a fixed-term imprisonment of not more than five years or criminal detention, and/or be imposed a fine one to five times the illicit income. Therefore, Ma Le's trading by using undisclosed information fell under serious criminal circumstances and Ma Le should be punished within this sentencing range. The original judgment was appropriate in sentencing and the appeal grounds of the appealing organ were untenable, which should not be admitted. Therefore, the Higher People's Court of Guangdong Province ruled to dismiss the appeal and affirm the original judgment. 广东省高级人民法院(2014)粤高法刑二终字第137号刑事裁定认为,刑法一百八十条第四款规定,利用未公开信息交易,情节严重的,依照第一款的规定处罚,该条款并未对利用未公开信息交易罪规定有“情节特别严重”情形;而根据第一百八十条第一款的规定,情节严重的,处五年以下有期徒刑或者拘役,并处或者单处违法所得一倍以上五倍以下罚金,故马乐利用未公开信息交易,属于犯罪情节严重,应在该量刑幅度内判处刑罚。原审判决量刑适当,抗诉机关的抗诉理由不成立,不予采纳。遂裁定驳回抗诉,维持原判。
After the ruling of second instance came into force, the People's Procuratorate of Guangdong Province requested the Supreme People's Procuratorate to file an appeal with the Supreme People's Court according to the trial supervision procedure. In the appeal, the Supreme People's Procuratorate alleged that paragraph 4 of Article 180 of the Criminal Law光宗耀祖支撑着我去教室 fell under circumstances with the invocation of statutory sentences and all provisions on punishment in paragraph 1 thereof should be invoked; the illegality and accountability of the crime of trading by using undisclosed information were equivalent to those of the crime of engaging in insider trading or divulging inside information, so were the statutory sentences thereof; and the acts of Ma Le should be determined as especially serious criminal circumstances and it was obviously inappropriate to apply probation on him. On the ground that there were no provisions on “especially serious circumstances” for the crime of trading by using undisclosed information under paragraph 4 of Article 180 of the Criminal Law, the criminal offense of Ma Le was degraded in the final ruling of this case, which was erroneous in the application of law and resulted in inappropriate sentencing. Therefore, the final ruling should be corrected according to the law. 二审裁定生效后,广东省人民检察院提请最高人民检察院按照审判监督程序向最高人民法院提出抗诉。最高人民检察院抗诉提出,刑法一百八十条第四款属于援引法定刑的情形,应当引用第一款处罚的全部规定;利用未公开信息交易罪与内幕交易、泄露内幕信息罪的违法与责任程度相当,法定刑亦应相当;马乐的行为应当认定为犯罪情节特别严重,对其适用缓刑明显不当。本案终审裁定以刑法一百八十条第四款未对利用未公开信息交易罪规定有“情节特别严重”为由,降格评价马乐的犯罪行为,属于适用法律确有错误,导致量刑不当,应当依法纠正。
The Supreme People's Court formed a collegial bench to directly retry this case according to the law and held an open hearing. The facts found in the retrial were basically identical with those found in the original trial. It was determined in the original judgment that the amount of illicit profits defendant in the original trial Ma Le obtained was 18,833,374.74 yuan, which was incorrect in calculation and should be 19,120,246.98 yuan. Therefore, it should be corrected according to the law. In the criminal judgment (No. 1 [2015], Criminal Division, Supreme People's Court), the Supreme People's Court held that the acts of Ma Le constituted a crime of trading by using undisclosed information. By using undisclosed information, Ma Le traded 76 stocks by using the undisclosed information, with the accumulative trading amount of over 1.05 billion yuan and the illicit profits of over 19.12 million yuan, which fell under especially serious circumstances. Ma Le voluntarily surrendered himself by returning home from abroad, which fell under the statutory sentencing circumstances for a lighter or mitigated punishment; and not subject to the control of others, he cashed stocks and deposited it in the three accounts involved, voluntarily provided an explanation to the China Securities Regulatory Commission, refunded all illicit income, pled guilty and showed repentance, did not squander the illicit money, and has paid the fine imposed on him in the original judgment. In consideration of the said discretionary sentencing circumstances for a lighter punishment, Ma Le may be given a mitigated punishment. With clear facts, true and sufficient evidence, and accurate conviction, the judgment of first instance and the ruling of second instance were erroneous in the comprehension of some clauses of the law, resulting in improper sentencing, which should be corrected. In accordance with the provisions of paragraphs 4 and 1 of Article 180, paragraph 1 of Article 67, and Articles 52, 53, and 64 of the Criminal Law of the People's Republic of China, and item (3) of Article 389 of the Interpretation of the Supreme People's Court on Applying the Criminal Procedure Law of the People's Republic of China, the Supreme People's Court rendered a judgment that: (1) the conviction of defendant in the original trial, Ma Le, in the criminal ruling (No. 137 [2014], Final, Civil DivisionII, HPC, Guangdong) rendered by the Higher People's Court of Guangdong Province and the criminal judgment (No. 27 [2014], First, Civil DivisionII, IPC, Shenzhen) rendered by the Intermediate People's Court of Shenzhen City should be affirmed; (2) the sentencing of defendant in the original trial, Ma Le, and recovery of the illicit income in the criminal ruling (No. 137 [2014], Final, Civil DivisionII, HPC, Guangdong) rendered by the Higher People's Court of Guangdong Province and the criminal judgment (No. 27 [2014], First, Civil DivisionII, IPC, Shenzhen) rendered by the Intermediate People's Court of Shenzhen City should be set aside; (3) defendant in the original trial, Ma Le, should be sentenced to a fixed-term imprisonment of three years under the crime of trading by using undisclosed information and a fine of 19.13 million yuan should be imposed on him; and (4) the illicit income of 19,120,246.98 yuan should be recovered and turned over to the state treasury according to the law. 最高人民法院依法组成合议庭对该案直接进行再审,并公开开庭审理了本案。再审查明的事实与原审基本相同,原审认定被告人马乐非法获利数额为18833374.74元存在计算错误,实际为19120246.98元,依法应当予以更正。最高人民法院(2015)刑抗字第1号刑事判决认为,原审被告人马乐的行为已构成利用未公开信息交易罪。马乐利用未公开信息交易股票76只,累计成交额10.5亿余元,非法获利1912万余元,属于情节特别严重。鉴于马乐具有主动从境外回国投案自首法定从轻、减刑处罚情节;在未受控制的情况下,将股票兑成现金存在涉案三个账户中并主动向中国证券监督管理委员会说明情况,退还了全部违法所得,认罪悔罪态度好,赃款未挥霍,原判罚金刑得已全部履行等酌定从轻处罚情节,对马乐可予减轻处罚。第一审判决、第二审裁定认定事实清楚,证据确实、充分,定罪准确,但因对法律条文理解错误,导致量刑不当,应予纠正。依照《中华人民共和国刑法》第一百八十条第四款、第一款、第六十七条第一款、第五十二条、第五十三条、第六十四条及《最高人民法院关于适用〈中华人民共和国刑事诉讼法〉的解释》第三百八十九条第(三)项的规定,判决如下:一、维持广东省高级人民法院(2014)粤高法刑二终字第137号刑事裁定和深圳市中级人民法院(2014)深中法刑二初字第27号刑事判决中对原审被告人马乐的定罪部分;二、撤销广东省高级人民法院(2014)粤高法刑二终字第137号刑事裁定和深圳市中级人民法院(2014)深中法刑二初字第27号刑事判决中对原审被告人马乐的量刑及追缴违法所得部分;三、原审被告人马乐犯利用未公开信息交易罪,判处有期徒刑三年,并处罚金人民币1913万元;四、违法所得人民币19120246.98元依法予以追缴,上缴国库。
Judgment's Reasoning 裁判理由
In the effective judgment, the Supreme People's Court held that: With clear facts and accurate conviction, the issue of this case was how to properly comprehend the invocation of sentencing circumstances under paragraph 1 of Article 180 of the Criminal Law in paragraph 4 thereof and how to grasp the standards for determining “especially serious circumstances” of the crime of trading by using undisclosed information. 法院生效裁判认为:本案事实清楚,定罪准确,争议的焦点在于如何正确理解刑法一百八十条土豪我们做朋友好不好第四款对于第一款的援引以及如何把握利用未公开信息交易罪“情节特别严重”的认定标准。
1.Comprehending and grasping the invocation of sentencing circumstances under paragraph 1 of Article 180 of the Criminal Law in paragraph 4 thereof 一、对刑法一百八十条第四款援引第一款量刑情节的理解和把握
For the crime of engaging in insider trading or divulging inside information, paragraph 1 of Article 180 of the Criminal Law provides that “Whoever has inside information on securities or futures transactions or illegally obtains inside information on securities or futures transactions, prior to the release of the information that involves the issuance of securities or securities or futures transactions or other information that has a material effect on the transaction price of securities or futures, buys or sells the said securities, engages in the futures transaction related to the inside information, leaks the said information, or explicitly or implicitly advises others to engage in the aforesaid transaction activities shall, if the circumstances are serious, be sentenced to a fixed-term imprisonment of not more than five years or criminal detention, and/or be fined one to five times the illicit income; or if the circumstances are especially serious, shall be sentenced to a fixed-term imprisonment of not less than five years but not more than ten years, and be fined one to five times the illicit income.” For the crime of trading by using undisclosed information, paragraph 4 thereof provides that “Where any practitioner of a stock exchange, a futures exchange, a securities company, a futures brokerage company, a fund management company, a commercial bank, an insurance company or any other financial institution or any staff member of the relevant regulatory department or industry association uses any undisclosed information obtained by taking advantage of his position other than the insider formation to engage in the securities or futures transaction activities related to the said information or explicitly or implicitly advises others to engage in the relevant transaction activities in violation of the relevant provisions, and the circumstances are serious, such practitioner or staff member shall be punished under paragraph 1 thereof.” 刑法一百八十条第一款对内幕交易、泄露内幕信息罪规定为:“证券、期货交易内幕信息的知情人员或者非法获取证券、期货交易内幕信息的人员,在涉及证券的发行,证券、期货交易或者其他对证券、期货交易价格有重大影响的信息尚未公开前,买入或者卖出该证券,或者从事与该内幕信息有关的期货交易,或者泄露该信息,或者明示、暗示他人从事上述交易活动,情节严重的,处五年以下有期徒刑或者拘役,并处或者单处违法所得一倍以上五倍以下罚金;情节特别严重的,处五年以上十年以下有期徒刑,并处违法所得一倍以上五倍以下罚金。”第四款对利用未公开信息交易罪规定为:“证券交易所、期货交易所、证券公司、期货经济公司、基金管理公司、商业银行、保险公司等金融机构的从业人员以及有关监管部门或者行业协会的工作人员,利用因职务便利获取的内幕信息以外的其他未公开的信息,违反规定,从事与该信息相关的证券、期货交易活动,或者明示、暗示他人从事相关交易活动,情节严重的,依照第一款的规定处罚。”
As for how to comprehend the provision of paragraph 4 that “(Where) … the circumstances are serious, such practitioner or staff member shall be punished under paragraph 1 thereof,” there were different comprehensions in judicial practice. In one view, paragraph 4 only prescribes “serious circumstances” other than “especially serious circumstances.” Therefore, the provision that “(Where) … the circumstances are serious, such practitioner or staff member shall be punished under paragraph thereof” meant that such practitioner or staff member should be punished according to the sentencing range of “serious circumstances” under paragraph 1; in another view, the provision of paragraph 4 that “… circumstances are serious” was only a clause on conviction, that is, where such practitioner or staff member fell under serious circumstances or above, he should be punished under paragraph 1. With regard to the specific punishment, such practitioner or staff member should be separately punished according to the law based on whether he fell under “serious circumstances” or “especially serious circumstances.” Where the circumstances were serious, he should “be sentenced to a fixed-term imprisonment of not more than five years”; if the circumstances were especially serious, he should “be sentenced to a fixed-term imprisonment of not less than five years but not more than ten years.” 对于第四款中“情节严重的,依照第一款的规定处罚”应如何理解,在司法实践中存在不同的认识。一种观点认为,第四款中只规定了“情节严重”的情形,而未规定“情节特别严重”的情形,因此,这里的“情节严重的,依照第一款的规定处罚”只能是依照第一款中“情节严重”的量刑档次予以处罚;另一种观点认为,第四款中的“情节严重”只是入罪条款,即达到了情节严重以上的情形,依据第一款的规定处罚。至于具体处罚,应看符合第一款中的“情节严重”还是“情节特别严重”的情形,分别情况依法判处。情节严重的,“处五年以下有期徒刑”,情节特别严重的,“处五年以上十年以下有期徒刑”。
In the view of the Supreme People's Court, the invocation of statutory sentences in paragraph 4 of Article 180 of the Criminal Law should be the invocation of all statutory sentences under paragraph 1 thereof. That is to say, there should be two circumstances, “serious circumstances” and “especially serious circumstances,” and two sentencing ranges for the crime of trading by using undisclosed information. Specific grounds for the aforesaid comprehension were as follows: 最高人民法院认为,刑法一百八十条第四款援引法定刑的情形,应当是对第一款全部法定刑的引用,即利用未公开信息交易罪应有“情节严重”“情节特别严重”两种情形和两个量刑档次。这样理解的具体理由如下:
(1) The aforesaid comprehension conformed to the legislative purposes of the Criminal Law. In the fields of funds, securities, and futures in China, transaction activities by using undisclosed information occur frequently. By using the backup force of huge funds invested by the public, the actors seek huge illegal profits by means of advance purchase or advance sale and transfer risks and losses to other investors. Such acts of the actors not only cause losses to the property interests of the entities with which such actors work, but seriously destroy the principles of openness, justness, and fairness at the securities market, seriously impair the interests of customer investors or private investors with information disadvantages, seriously damage reputation of the financial sector, affect investors' trust in financial institutions, and have adverse impacts on asset management and sound development of the funds, securities, and futures markets. For this concern, the crime of trading by using undisclosed information was added in the Amendment (  = 7 \* ROMAN  VII) to the Criminal Law of the People's Republic of China and listed in the same clause with the crime of engaging in insider trading or divulging inside information, proving that the illegalities and accountabilities of both crimes were equivalent. Therefore, “especially serious circumstances” should apply to the crime of trading by using undisclosed information. (一)符合刑法的立法目的。由于我国基金、证券、期货等领域中,利用未公开信息交易行为比较多发,行为人利用公众投入的巨额资金作后盾,以提前买入或者提前卖出的手段获得巨额非法利益,将风险与损失转嫁到其他投资者,不仅对其任职单位的财产利益造成损害,而且严重破坏了公开、公正、公平的证券市场原则,严重损害客户投资者或处于信息弱势的散户利益,严重损害金融行业信誉,影响投资者对金融机构的信任,进而对资产管理和基金、证券、期货市场的健康发展产生严重影响。为此,《中华人民共和国刑法修正案(七)》新增利用未公开信息交易罪,并将该罪与内幕交易、泄露内幕信息罪规定在同一法条中,说明两罪的违法与责任程度相当。利用未公开信息交易罪也应当适用“情节特别严重”。
(2) The aforesaid comprehension conformed to the text of the legal provisions. First, “… circumstances are serious” under paragraph 4 of Article 180 of the Criminal Law is a conviction clause. The Provisions (  = 2 \* ROMAN  II) of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing Criminal Cases under the Jurisdiction of Public Security Organs for Investigation and Prosecution prescribes circumstance standards for prosecution in a crime of trading by using undisclosed information and makes clear that prosecution is allowed only when the crime falls under “serious circumstances.” The crime of trading by using undisclosed information is a crime with elements of circumstances. To specify the attribute of a crime with elements of circumstances, the legislation must use such expressions as “serious circumstances,” so as to avoid conviction of acts “with non-serious circumstances.” Second, “… circumstances are serious” under paragraph 4 thereof do not have the nature of a sentencing clause at the same time. There are many circumstances in the clauses of the Criminal Law where “serious circumstances” have the nature of both a conviction clause and a sentencing clause; however, specific statutory sentences are listed after such clauses without exception. No specific statutory sentence is listed after “… circumstances are serious” under paragraph 4 of Article 180 of the Criminal Law; instead, statutory sentences for the crime of engaging in insider trading or divulging inside information are referred to. Therefore, “… circumstances are serious” under paragraph 4 is only of the nature of a conviction clause other than a sentencing clause. (二)符合法条的文意。首先,刑法一百八十条第四款中的“情节严重”是入罪条款。《最高人民检察院、公安部关于公安机关管辖的刑事案件立案追诉标准的规定(二)》,对利用未公开信息交易罪规定了追诉的情节标准,说明该罪需达到“情节严重”才能被追诉。利用未公开信息交易罪属情节犯,立法要明确其情节犯属性,就必须借助“情节严重”的表述,以避免“情节不严重”的行为入罪。其次,该款中“情节严重”并不兼具量刑条款的性质。刑法条文中大量存在“情节严重”兼具定罪条款及量刑条款性质的情形,但无一例外均在其后列明了具体的法定刑。刑法一百八十条第四款中“情节严重”之后,并未列明具体的法定刑,而是参照内幕交易、泄露内幕信息罪的法定刑。因此,本款中的“情节严重”仅具有定罪条款的性质,而不具有量刑条款的性质。
(3) The aforesaid comprehension conformed to the legislative technique for the invocation of statutory sentences. Invocation of statutory sentences means that no separate statutory sentence is stipulated for a certain crime; instead, statutory sentence for any other crime is invoked as statutory sentences for this crime. Paragraph 4 of Article 180 of the Criminal Law invokes statutory sentences with the aim to avoid repetition in literal expressions of clauses and it does not fall under circumstances with uncertain legal provisions. (三)符合援引法定刑立法技术的理解。援引法定刑是指对某一犯罪并不规定独立的法定刑,而是援引其他犯罪的法定刑作为该犯罪的法定刑。刑法一百八十条第四款援引法定刑的目的是为了避免法条文字表述重复,并不属于法律规定不明确的情形。
In conclusion, although paragraph 4 of Article 180 of the Criminal Law does not specify “especially serious circumstances,” it should include “especially serious circumstances” and the sentencing range thereof according to the legislative purpose, text, and legislative technique of this clause. 综上,刑法一百八十条第四款虽然没有明确表述“情节特别严重”,但是根据本条款设立的立法目的、法条文意及立法技术,应当包含“情节特别严重”的情形和量刑档次。
2. Standards for determining “especially serious circumstances” of the crime of trading by using undisclosed information 二、利用未公开信息交易罪“情节特别严重”的认定标准
Although there are no special provisions on standards for determining “especially serious circumstances” of the crime of trading by using undisclosed information at present, since the Criminal Law prescribes that the punishment against the crime of trading by using undisclosed information refers to that against the crime of engaging in insider trading and divulging inside information, and the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Law in the Handling of Criminal Cases about Engaging in Insider Trading or Divulging Inside Information also determines circumstances of the trading amount of more than 2.5 million yuan and the amount of illicit profits obtained of more than 750,000 yuan as the standards for “especially serious circumstances,” the crime of trading by using undisclosed information should also follow the same standards. By using undisclosed information, Ma Le engaged in trading activities, with the accumulated trading amount of over 1.05 billion yuan and the illicit profits of over 19.12 million yuan, far exceeding the aforesaid standards. Besides, the case about Ma Le's trading by using undisclosed information was a case involving the largest trading amount investigated across the country at the time when the case was exposed, in accordance with the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Law in the Handling of Criminal Cases about Engaging in Insider Trading or Divulging Inside Information, the criminal circumstances of Ma Le should fall under “especially serious circumstances.” 目前虽然没有关于利用未公开信息交易罪“情节特别严重”认定标准的专门规定,但鉴于刑法规定利用未公开信息交易罪是参照内幕交易、泄露内幕信息罪的规定处罚,最高人民法院、最高人民检察院《关于办理内幕交易、泄露内幕信息刑事案件具体应用法律若干问题的解释》将成交额250万元以上、获利75万元以上等情形认定为内幕交易、泄露内幕信息罪“情节特别严重”的标准,利用未公开信息交易罪也应当遵循相同的标准。马乐利用未公开信息进行交易活动,累计成交额达10.5亿余元,非法获利达1912万余元,已远远超过上述标准,且在案发时属全国查获的该类犯罪数额最大者,参照最高人民法院、最高人民检察院《关于办理内幕交易、泄露内幕信息刑事案件具体应用法律若干问题的解释》,马乐的犯罪情节应当属于“情节特别严重”。
(Judges of the effective judgment: Luo Zhiyong, Dong Chaoyang, and Li Jiantao) (生效裁判审判人员:罗智勇、董朝阳、李剑弢)
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