“老鼠仓”问题的刑事立法思考——与相关罪名比较视角分析

Reflections on Criminal Legislation for Rat Trading Problem——Analysis of Perspectives Compared with Relative Crimes

证券市场中存在的"老鼠仓"问题越来越受关注,《刑法修正案(七)》也对这一问题做出了规定,将其归入内幕交易、泄露内幕信息罪中。但该罪与老鼠仓行为的特征有很大区别,这种安排并不合适。而呼声较高的设立背任罪的设想也与我国立法现状存在冲突。根据老鼠仓犯罪的实质及我国刑事立法情况,折中的方式是设立金融行业从业人员背任罪,并将其作为刑法第182条之一。

There has been more and more concern for Rat trading problem in securities market. In Amendments to the Criminal LawⅦ, this problem has been included in the crimes of insider dealing and revealing inside information. As a matter of fact, this crime is quite different from Rat trading in behavior characteristics, which is not a proper approach. Meanwhile, the assumption about the crime of violating responsibilities of which many people approve, may be conflicted with our current legislation. According to the real essence of Rat trading crime and our criminal legislation, a middle course is to establish a crime of violating responsibilities by financial employees, as one of Article 182 in the Criminal Law.