Systematic Legislation on Criminal Constitutive Elements of Securities Fraud
Date Issued
2015
Date
2015
Author(s)
Jen, Yu-Chung
Abstract
Securities Fraud, defining all fraudulent conducts in securities market with the essence that makes general investor do wrongful securities exchange, not only makes qualified majority of the trading counterpart personal property loss but also causes the diminishment of the proper super-personal social (economic) interests on fair, public functions of securities market because of the personal property interests accumulated to a certain amount. Thus, securities fraud crime is indeed special provisions independent of the general fraud in criminal law. It seems that the meaning of Paragraph 1, Article 20 of the Securities and Exchange Act is limited in directly fraudulent conducts on securities exchange (securities fraud in a narrow sense). But, if we check the fact and the system of norm, this must state as “Antifraud Provisions” position and contain securities fraud in a broad sense entirely with core concept “imposing fraud in securities market to make general investor do wrongful securities exchange acts” inclusive of securities fraud, financial statement fraud, market manipulation & inside trading etc.. Paragraph 1, Subparagraph 1, Article 171 of the Securities and Exchange Act, which connects the violation of prohibitive provisions (like Paragraph 1, Article 20) and criminal penalty provisions directly regardless of various circumstances and degree, violates the principles and rules of liability normative system on our civil law system, especially in Nulla poena sine lege and the principle of clarity and definiteness of punishment, and the protection of human rights and legal interests so on. Therefore, we must recheck the criminal constitutive elements of securities fraud on the view of “Tatbestand”, including objective elements (like subject, object, phase, external illegality, result & causation etc.) and subjective elements (double eventual intent at least). Besides, since securities fraud crime is special to the general fraud and both protects personal and super-personal interests, so it should have the character of consequential offence and hidden constitutive elements “being sufficient to affect the market order.” Actually, our current legal system of securities fraud still has many points to think and improve conprehensively. Also, judges are supposed to hold trials independently in accordance with law on Article 80 of the Constitution. So it’s very essential to think how can judicial circles judge related cases of securities fraud to protect human rights and normative system of criminal liability. Hence, we must think and review both legislative technique and judicial decision on basic viewpoint deeply to find the more appropriate and more legal logical solutions. Since it’s hard to break through the existing legal framework in reality, we suggest that criminal constitutive elements outside prohibitive provisions and measure policy of aggravating elements must be stipulated into legislation, and the relevant provisions must be reinserted the position of the relevant provisions more in line with the normative system. It should take care to examine the range and concurrence of the fact, to apply law on purposive restrictions as possible and to form economic criminal judicial professional special groups on judicial practice; FSC should also set up financial institutions account database. Consequently, we can be able to give consideration to human rights, the real discovery and litigation economy in the investigation and the hearing of all relevant cases. In the long term, we should establish a strict, well-definite constitutive legislative structure focusing on “action-orientation” and adopt the legislative technique of norm-centralization “emphasizing in constitutive elements and legal validity” to reconstruct an overall powerful system and contents of securities legislation.
Subjects
securities fraud
antifraud provisions
criminal constitutive elements
legal validity
normative system
norm-centralization
legislative technique
SDGs
Type
thesis
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