"Criminal law amendment (six)" (hereinafter referred to as the bill) following the January 1, 2006 implementation of the "company law" and "Securities Law amendment amendment" (hereinafter referred to as the new company law and the new securities law), an important legal and standardizing the securities market (act). A major characteristic of the bill is consistent with the new company law and the new securities law, to regulate the securities market, the securities crime to provide legal protection. Specific performance for the following five aspects:

New information disclosure behavior of crime

The criminal law amendment (six) fifth

[interpretation]

Act fifth provisions compared with the original article 161st of the criminal law, there are some new changes:

One is to add the subject limit word.

"That is obligated to disclose the information companies, enterprises," instead of "company, enterprise", actually narrowed the scope of subject. Here mainly refers to the listing Corporation and the issuer in accordance with the law, including to other shareholders and the public disclosure of information, such as the fund manager, the fund custodian, the "law", means in accordance with the "provisions of securities investment fund law," sixtieth article 61.

The two is to increase the behavior.

Added "or to be other important information disclosure is not in accordance with the provisions of the disclosure in accordance with the law". The new securities law fifty-fourth, 64, 65, 66, 67 and "securities investment fund law" article sixty-second shall be open to the public disclosure of the information content of a specific set of article 161st of the criminal law, the original "financial report" is only one. Violation of the above provisions, the disclosure of information is not disclosed, a state of the objective behavior of crime of cost, this actually extends the range of behavior.

The three is to increase the "other serious circumstances offense".

Added "or other serious circumstances". "Other serious circumstances" can be the consequence, or other serious circumstances can be behavior, such as "the stock delisting or trading had to be suspended". The these were beyond the original criminal law 161st stipulation "serious damage to shareholders or other interests".

Increase the behavior of market manipulation

The criminal law amendment (six) eleventh

[interpretation]

The Eleventh Amendment to article 182nd of the criminal law was revised, mainly in the third item of the first paragraph added "between their actual control accounts for securities transactions" this provision. In view of some securities companies or investors to the poor mountainous areas or rural, bought hundreds or even thousands of identity cards, the opening of capital account and securities account, securities transactions in these accounts, in fact all these firms or investors control, this is a kind of typical methods to manipulate the market. Its essence is to buy from sell since, we separate, in order to more effectively regulate market behavior.

The company behaviors

The provisions of the criminal responsibility

The criminal law amendment (six) ninth, twelfth

[interpretation]

Breach of trust, namely the breach of trust, also known as against the task, in the Japanese criminal law against the crime (or the crime of breach of trust), mainly for the securities, futures crime. The Ninth Amendment mentioned "listing Corporation directors, supervisors, senior management personnel violate the duty of loyalty to the company act"; Article twelfth referred to "the breach of fiduciary obligation", these are breach of trust, against the task of meaning, but they are not entirely equivalent elements from abroad against crime (part of the same). For the sake of convenience, we have these two known as the breach of trust "in a broad sense".

They have their own characteristics:

A, act ninth (i.e. 169th of criminal law) is a supplement to the article 169th of the criminal law.

The criminal law 169th stipulation: State-Owned Company, enterprise or its superior departments directly in charge of state-owned assets, play favouritism and commit irregularities, shares or sell at a low price, thus causing heavy losses to the interests of the state,......". In fact, this is also a kind of betrayal, but its subject and behavior have limitations.

And the 169th one (i.e. act ninth) is different: 1, the actors is the listing Corporation's directors, supervisors, senior management personnel. The breakthrough was to article 169th of the criminal law "State-Owned Company, enterprise" limit;

2, the act is capital, commodity, service or any other asset, debt, creditor's rights; also includes security etc.. The breakthrough of this kind of article 169th of the criminal law "state owned assets";

State 3, the activity also act of ninth listed six kinds of. Breakthrough in the article 169th of the criminal law "shares to sell limited,".

Two, act twelfth (i.e. 185th of criminal law) is an important supplementary provisions of article 185th of the criminal law of the crime of misappropriation of funds and the crime of embezzlement of public funds. It is a common phenomenon in the securities industry and the establishment of multiple, its characteristic is: 1, this is the unit crime, not a personal crime. The main commercial banks, stock exchanges, securities companies, futures exchange, futures Broker's Firm, insurance companies and other financial institutions and individuals themselves cannot become the subject of the crime.

2, the behavior is "the breach of fiduciary obligation, unauthorized use of client funds or other trust, the trust property".

Here must pay attention to the following points: on the "unauthorized", here, refers to "unauthorized" without the customer or client consent, not without the consent or approval. As the main body of the crime of unit rather than individuals, so, even after the agreed but without the customer or client's consent, still belong to the "unauthorized".

② on "use", here the "use", "use" shall include, "extraction", "dynamic branch". Literally, it seems should also include the "appropriation", but because of article 185th of the criminal law to "embezzlement and misappropriation of public funds" made special provisions, therefore, the "use", it seems to be included in article 185th of the criminal law outside the "appropriation" situation. In addition, the "use" shall also include the property disposition.

On the "breach of fiduciary duty". "Fiduciary duty" from contract and trust contract, regardless of the spoken or written form (with the exception of the law has required by the provisions of a written contract outside). So, in general "the breach of fiduciary duty" is the breach of contractual obligations, should bear the liability for breach of contract. But because the perpetrators have unauthorized use of client behavior and achieve the severity, so, behavior person to bear criminal responsibility.

④ "breach of fiduciary duty" and "use post convenient" is different. Article 185th of the criminal law is to "take advantage of duty"; the provisions of this article is "the breach of fiduciary duty", that is to say, without any post personnel may also "breach of fiduciary duty", as long as there exists can be entrusted to the contract or the trust contract. And "use post convenient" but not in "contract" existence as the premise, as long as the job, can use this post.

Add the crime of false bankruptcy

The criminal law amendment (six) sixth

[interpretation]

Act sixth (article 162nd of the criminal law two) based on hidden, article 162nd of the criminal law of the interference of the accounts settlement and article 162nd of the criminal law of intentionally destroying accounting vouchers, accounting books, financial and accounting reports of crime, the crime of false bankruptcy provisions, these three types of behavior are hindered the country to the order of company, enterprise management, should constitute a crime. They are debt evasion, the typical way to damage the creditors and the interests of investors, but also have a serious impact on the stock market, we must severely punish.

To the company, the enterprise personnel

Bribery crime has added new content

The criminal law amendment (six) seventh, eighth

[interpretation]

A company, enterprise personnel, expand the scope of subject of bribery. The main original article 163rd of the criminal law firms, corporate officers taking bribes is only limited to the "company, the staff of the enterprise", the Seventh Amendment increased "or other units of staff", for example, institutions (hospitals, schools) staff, expand the scope of subject. This expansion also extends to the second paragraph of this article; "other state-owned units" is introduced in section third.

Two, expand the scope of bribery

Object the article 164th of the criminal law of the first paragraph "to the company, the enterprise personnel bribery" is restricted to "company, the staff of the enterprise", the eighth amendment increased "or other units of staff". The corresponding also expanded the scope of bribery object.

In addition, the relations between the various crime bill of tenth, thirteenth, fourteenth, fifteenth, sixteenth and other provisions of the crime, the crime of money laundering and bank securities market is also very close, the space is limited, not present.

Reporter Xia Lihua photography

Newspaper reporter Xia Lihua

　　

6 days of the Ten Session of the twenty-second meeting of the NPC Standing Committee meeting yesterday, at the press conference that followed, the NPC Standing Committee Law Committee Director Lang Sheng criminal law, will the meeting voted through the criminal law amendment (six), answered reporters questions.

Market manipulation crime: does not exist in name only

The amendments to the criminal law, adding to the number of criminal punishment, such as the manipulation of securities, futures crime, punishable by up to ten years.

Although the criminal law amendment (six) listing mode, in detail the definition of three control crime, "general provisions and the manipulation of the securities and futures market, to other forms of", but people still have such a question: will not because in practice difficult to investigate and collect evidence, leading to this accusation useless?

In response, Lang Sheng said, the stock market is the most complicated high IQ of crime, crime, crime of rigging is hard to verify and defined in practice, is the world's common problem, but is not to say that the establishment of this crime is useless. Therefore, we will work with relevant departments to do further research, in practice continuously push to this kind of crime.

"Tunneling" listing Corporation crime:

To grasp the essential characteristic

Lang Sheng said, the amendments to the criminal law (six) plus a catch all clause in the form of the definition of "tunneling" listing Corporation behavior, namely "the other way damage the interests of the listing Corporation". This is conducive to the protection of the interests of investors. However, in specific law enforcement, nature of judicial organs must strictly grasp of this crime, judgment and discretion according to the specific circumstances, in the implementation of, should not have the provisions of the case of abuse.

Lang Sheng said, with the law the behavior in economic life of one one to be provided is unlikely, therefore in the form of the definition of "tunneling" listing Corporation behavior with a specific clause. In specific law enforcement, nature of judicial organs must strictly grasp of this crime, judgment and discretion according to the specific situation.

He explained further, criminal law amendment (six) provisions of the listing Corporation directors, supervisors, other senior management personnel, in violation of the duty of loyalty to the company, using the convenience of duty, manipulation of listing Corporation, engaged in damage to the interests of the company, will be the responsibility of the parties. Nature of this crime is very clear, is the subject of the crime is the dominant ability of company directors, supervisors and senior management personnel; two is a violation of the duty of loyalty to the company; three are engaged in the damage to the interests of the company.

The occurrence of safety accidents:

If the employer and the legal representative of the responsibility

The occurrence of safety accident crime, whether to investigate the employer and the legal representative of the responsibility? For this question, the reporter Lang Sheng said, according to the provisions of the amendment (six), major safety accident, which constitutes a crime, should be held directly responsible persons in charge and the other persons in charge of the responsibility, the "charge" and "other persons liable" contains the employer responsible for the accident and the legal representative.

"Such a statement is a term of criminal law." He said, the amendments (six) further aggravated the employer forces workers to illegal operations of criminal responsibility for the accident, aggravated punishment. But for the accident, not reporting or falsely, delaying the rescue action, also provides for the crime, it is new.

Market manipulation crime does not exist