证据法视野下对查办证券内幕交易罪两个问题的探讨

On the Discussion about the Two Problems of Investigating Crimes of Securities Insider Trading in the View of Evidence Law

当前在查办证券内幕交易罪案件中,普遍出现两个问题:一是公安侦查环节。公安机关没有履行主要的侦查职能,实际主要的侦查工作大多由证券监管行政部门完成。公安机关主要的工作变成核实和转化行政执法机关的证据;二是检察和审判环节。对于认定是否构成犯罪的关键事实,检察院和法院基本上放弃独立判断,主要依赖于证券监管行政部门的判断,而且在事实上又使刑事被告人对证券监管行政部门的判断无法进行质证。

In current cases of investigating securities insider trading,two problems occurred generally as follows. Firstly,in the public security investigation,the investigation function was not performed by the public security organs. In fact,most of main investigation was performed by securities regulatory administrations. The main work of the public security organs became evidence of verification and conversion of administrative law enforcement organs. In the inspection and trail,with regard to key facts identified to be a crime or not,prosecutors and courts basically abandoned independent judgment,but mainly depended on the judgment made by securities regulatory administrations. However,in fact,the judgment made by securities regulatory administrations could not be cross- examinated by criminal defendants.