Our reporter Wu Xiaolu
According to the news of the Supreme People's Procuratorate on May 17, in order to strictly crack down on illegal and criminal activities in securities and futures according to law, maintain the order of the capital market, strengthen the link between administrative law enforcement and criminal justice, improve the cooperation and restriction mechanism of law enforcement and judicial departments, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security The four departments of the China Securities Regulatory Commission recently issued the Opinions on Several Issues Concerning the Handling of Securities and Futures Illegal and Criminal Cases (hereinafter referred to as the Opinions), which shall come into force as of the date of promulgation.
Guo Li, a professor of Peking University Law School, said in an interview with the Securities Daily that the Opinions are an important measure for relevant departments to implement the new "nine national rules" and solidly promote the implementation of the "1+N" policy in the capital market, demonstrating the determination of the four departments to strictly crack down on securities and futures crimes in accordance with the law and coordinate to strengthen investor protection.
Perfect the full chain attack and full accountability system
There are seven chapters and 31 articles in the Opinions, which are respectively the general requirements, the connection between administrative law enforcement and criminal justice, the jurisdiction of criminal cases, the collection, review and application of evidence, the adherence to strict punishment according to law, the improvement of cooperation and cooperation mechanisms, and the supplementary provisions.
In terms of general requirements, the Opinions put forward that we should adhere to the zero tolerance requirement and strictly crack down on illegal and criminal activities in securities and futures according to law. We will intensify investigation and punishment, adhere to the principle of moving everything away, arresting when caught, and prosecuting when sued, strictly control the application of probation, increase the application and execution of property punishment, maximize the recovery of stolen goods and damage, and improve the whole chain of attack and all-around accountability system. Correctly implement the criminal policy of tempering justice with mercy, adhere to the main tone of "strictness", identify lenient circumstances according to law, and realize the organic unity of political, legal and social effects. Strengthen work coordination and form joint efforts. Consolidate judicial consensus on law enforcement and improve professionalism.
With regard to the jurisdiction of criminal cases, the Opinions proposed that the first instance case of securities and futures crime should be under the jurisdiction of the intermediate people's court, the people's procuratorate at the same level should be responsible for initiating public prosecution, and the public security organ at or above the prefecture (city) level should be responsible for filing the case for investigation. Securities and futures crime cases that several public security organs have jurisdiction over are under the jurisdiction of the public security organ that initially accepted them, and can be transferred to the public security organ of the main crime place for jurisdiction when necessary. The Opinions also clarifies the collection, examination and application of evidence in securities and futures crimes.
Zheng Naiquan, director of Beijing Zhongyan Law Firm, said in an interview with the reporter of Securities Daily that the issuance of the Opinions is conducive to the investigation and punishment of illegal and criminal acts in the securities and futures market, especially the provisions on the jurisdiction of criminal cases, which is convenient for the investigation and criminal prosecution of criminal acts. The Opinions not only emphasize the connection and cooperation between administrative law enforcement and criminal justice, but also respect the difference and independence between administrative law enforcement and criminal justice. For example, if the standards for determining the facts of the two are specifically differentiated, administrative law enforcement cases can comprehensively determine the facts of violations of the law according to the standard of evidence with obvious advantages, while criminal cases should be clear about the facts of the crime, and the evidence should be accurate and sufficient.
"In addition, the Opinions make it clear that the professional determination opinions issued by the securities and futures regulatory authorities can be regarded as the facts of criminal cases, but the professional determination opinions issued by the regulatory authorities are not regarded as the necessary procedures for handling criminal cases of securities and futures. The judicial authorities can independently determine the nature of the facts of cases according to law, so as to maintain the mutual independence of administrative law enforcement and criminal justice." Zheng Naiquan said.
Cracking down on financial fraud in the whole chain
The Opinions put forward that we should strictly crack down according to law. Deeply understand the serious harm of securities and futures crimes to financial management order and financial security, adhere to strict punishment according to law, and give full play to the punishment and prevention functions of penalties. For those who have committed crimes of misrepresentation or obstructed case handling in various ways, refuse to return the stolen money and goods or use the stolen money and goods for illegal activities, the illegal profits are particularly huge, and many securities and futures crimes have been committed, resulting in delisting of listed companies, major losses to investors, and possible financial risks Generally, the relative non prosecution, exemption from criminal punishment and suspension of sentence are not applicable to criminal suspects and defendants who seriously endanger financial security and other adverse social impacts or seriously endanger the consequences.
Strictly and quickly investigate and deal with illegal and criminal cases such as financial fraud, misappropriation of assets of listed companies, insider trading, market manipulation and securities fraud. Securities issuers, controlling shareholders, actual controllers, directors, supervisors, senior managers, financial practitioners and others who commit securities and futures crimes shall be severely punished according to law. The whole chain will crack down on intermediary organizations and financial institutions that provide false certificates and financial vouchers for financial fraud, professional groups that cooperate in capital allocation, stock trading and stock recommendation for insider trading and manipulation of securities and futures market crimes, and external personnel who collude with listed companies inside and outside to drain the company's assets, if they constitute a crime, they shall be investigated for criminal responsibility according to law.
Correctly implement the criminal policy of tempering punishment with leniency, and ensure that punishment is appropriate to the crime, and that crime, responsibility and punishment are compatible. Those who actively cooperate with the investigation, truthfully state the facts of the crime, take the initiative to return the stolen goods and compensate, sincerely confess their guilt and repentance, can be given lenient punishment according to law; Those who meet the scope and conditions of leniency of punishment for pleading guilty shall be dealt with in accordance with the provisions of the Criminal Procedure Law. If the circumstances of voluntary surrender, meritorious service, accomplice and other legally lenient punishment are determined according to law, the determination standard shall not be lowered.
We will strengthen the application and enforcement of property punishment. The People's Procuratorate has proposed sentencing and the People's Court has issued a judgment. We should pay attention to the combination of free punishment and property punishment, and the recovery of illegal income. We will increase economic penalties and property enforcement for securities and futures criminals. The People's Procuratorate and the People's Court may, according to the circumstances of the crime committed by the criminal suspect or defendant and the need to prevent recidivism, put forward suggestions and make decisions on the prohibition of employment according to law.
In terms of improving the cooperation mechanism, the Opinions proposed that the public security organ should deal with the cases that hinder the staff of the securities and futures regulatory agency from performing their duties according to law by violence and threat, and constitute a crime, Criminal responsibility shall be investigated according to law.
