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An Examination of Legal Regulations for Insider Dealing in the UK and the Lessons for China

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The UK’s position as a leading international financial center depends not only on the openness and competitiveness of its market, but also on its reputation as a clean and fair place to do business. Market confidence will be undermined where participants and users believe markets are susceptible to abuse. Thus, the main convincing justification for controlling insider’s abuse of power is based on the harm principle, which it causes to investor confidence and securities markets. An insider ought not to be able to take advantage of his position either to breach a confidence or to achieve an unfair advantage in the market place; particularly the market place should, as far as possible, provide equality of opportunity to people entering it. Insider dealing has been regulated by the criminal law involved under Part V of the Criminal Justice Act 1993 in the UK. It has become clear that the traditional criminal penalty was limited by the criminal standard of proof required, while self-regulatory regimes are thought as toothless tigers. Although various potential common law civil remedies for breach of fiduciary duty and breach of confidence relating to insider dealing do exist, they are ineffective remedies and beset by so many complexities. As a response, the Financial Services and Markets Act 2000 came into force and marked an important development in the regulation of market abuse in creating civil penalties, which also contained misuse of confidential insider information. Later, the main substantive changes to existing civil market abuse regime have been taken effect within the Financial Services and Markets Act 2000 (Market Abuse) Regulations 2005, 2011 and 2014. Regarding to the regulatory framework, the range of regulatory powers of the Financial Services Authority, which has been replaced by the Financial Conduct Authority in April 1, 2013, available in combating market abuse is one of the most fundamental innovations of the FSMA 2000 and plays a significant role in defining the law in practice through a Code of Market Conduct. China has also exerted great efforts in regulating insider dealing. Under the current Chinese legal framework, insider dealing is governed by the Criminal Law of the People’s Republic of China, the Securities Law of the People’s Republic of China 2005 and some other regulations. The China Securities Regulatory Commission (CSRC) is the regulatory body for supervising and penalizing insider dealing in China. Although China has made progress in legislation in terms of the regulation of insider dealing, there are still much room for improvement, such as the enforcement of the civil penalty and the enforcement power of the CSRC. Due to the fact that the UK has rich experience in regulating insider dealing, it is of great significance for China to learn from the UK’s successful practices. Insider dealing could be well controlled with innovative and effective legal regulations. This article focuses on an in-depth examination on the regulations in the UK and a brief introduction of regulations in China in order to figure out an answer to what has been achieved in the UK and what are the most important aspects that China could learn from the UK’s experiences. The aim of increasing the deterrent effect by reducing the obstacles to imposing suitable sanctions, whether criminal, civil or regulatory, should enable regulators to police a more efficient manner in the field of financial markets.

(郑维炜) Ph.D., School of Law, Jilin University of China, Changchun, China; Associate Professor, School of Law, Renmin University of China, Beijing 100872, China. Contact: smileweiwei1014@sina.com
10.3868/s050-006-017-0029-2
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/content/journals/10.3868/s050-006-017-0029-2
2017-01-11
2018-09-22

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