The crime of manipulating the trading price of securities and futures refers to the act of influencing the trading price of securities and futures by taking advantage of its capital, information and other advantages or abusing its power, creating the illusion of the securities and futures market, inducing or causing investors to make investment decisions in securities and futures without knowing the truth, and disrupting the order of the securities and futures market.

(A) the object elements

This crime violates the national securities management system and the legitimate rights and interests of investors. In order to protect the sensitive prices of securities and futures markets from manipulation and control, make them operate accurately in the investment market according to the law of supply and demand and the law of value, and provide investors with a fair, honest and creditable investment place, China has established an operating mechanism for securities and futures trading. Manipulating the price of securities trading will lead to the falsehood of market supply and demand, and will fundamentally damage investors' trust in the securities market.

This crime violates the national securities and futures trading management regulations, that is, the Securities Law, undermines the financial order and seriously disrupts the management order of the securities and futures market. The object of this crime is all kinds of securities and futures, including companies, corporate bonds, shares of listed companies, and company new share subscription certificates. At the same time, manipulating the trading price of securities and futures harms the legitimate rights and interests of investors.

(b) objective factors

Objectively, this crime is manifested as manipulating the market by taking advantage of funds, information, etc. or abusing power, affecting the price of the securities and futures market, creating a false image of the securities and futures market, inducing or causing investors to make investment decisions in securities and futures without knowing the truth, and disrupting the order of the securities and futures market. Specifically, there are the following behaviors:

1 Alone or in collusion, concentrate the advantages of capital, shareholding or position, or use the advantages of information to jointly or continuously buy and sell, and manipulate the trading prices of securities and futures. The former is divided into separate and continuous transactions and conspiracy transactions. For example, large-scale fund holders, stock holders or positions use a large amount of funds or a large number of stocks and futures contracts to buy or sell a stock or futures contract continuously at high or low prices, creating the illusion that the price of the stock or futures contract will rise and fall, and inducing others to sell or chase after it. The actor himself sold stocks and futures contracts in the price skyrocketing stage, and bought a large number of stocks and futures contracts in the price plunging stage to obtain huge profits, which caused other investors to suffer huge losses. .

2. Collusion with others, trading securities and futures with each other at the time, price and manner agreed in advance, or buying and selling securities that are not held by each other, affecting the trading price or trading volume of securities and futures. There are two ways to behave. One is false buying and selling; The second is short selling. Fake buying and selling refers to colluding with others to buy and sell each other at the time, price and manner agreed in advance, but the ownership of securities has not really changed, and one party returns the securities to the other party afterwards. Virtual buying and selling, also known as relatives' entrustment, should actually be included in the above-mentioned collusive buying and selling. Although the agents who buy and sell waste some commissions and taxes, they can create the illusion that some securities and futures are active, thus affecting the trading price or volume of securities and futures and inducing speculators to be fooled. Short selling refers to the parties to a securities transaction selling securities they don't own or selling securities they don't own. Short selling is based on securities financing or securities lending, so some countries also call it credit transaction or pre-lending transaction. With its own reputation, customers can borrow funds or stocks from the above-mentioned companies to participate in the transaction after opening an account in a company that can handle margin financing and securities lending business. In the mature foreign securities market, the government allows some securities institutions to operate margin trading business under strict and standardized management as a catalyst to stimulate the securities market. Because short selling can provide convenience for securities traders and increase profit opportunities. However, once the stock price forecast is wrong, short sellers will also suffer heavy losses. In China, the stock market is highly speculative because of its immature development. In order to make the stock market tend to be rational and orderly, the State Council 1993 issued the "Provisional Regulations on the Administration of Stock Issuance and Trading" and other relevant securities trading management measures clearly stipulate that stock trading must be spot trading, credit trading or overdraft trading is prohibited, and no institution is allowed to engage in margin trading. However, in recent years, overdraft transactions have occurred frequently all over the country. Judging from the specific situation of overdraft, firstly, securities practitioners take advantage of their positions to overdraw the funds or stocks kept by the company or on behalf of customers for speculation, and secondly, some large households take advantage of the psychology of securities operating institutions eager to create more profits and engage in overdraft transactions with their consent. The purpose of overdraft trading is to make huge profits in its time, but the actor of overdraft trading does not have to manipulate the market. The result of overdraft does make the actor have the ability to manipulate the market, but the purpose of overdraft trading is not always to manipulate the market.

3. Self-buying and self-selling futures contracts that do not transfer the ownership of securities, or self-buying and self-selling futures contracts with themselves as trading objects, affect the trading price or trading volume of securities and futures. Specifically, the same company or individual opens two or two similar accounts in the stock exchange (which is illegal in itself), and trades with similar prices or quantities in opposite directions with different accounts in roughly the same time. The buying and selling price is not determined by market supply and demand, but by oneself. In fact, the ownership of securities has not changed. The behavior of self-buying and self-selling only needs to pay some commissions and taxes, but it can induce public investors to follow suit through the signs of rising and falling securities prices caused by changes in trading volume, so as to achieve the purpose of selling high or buying low.

4. Manipulating the trading prices of securities and futures by other means. The securities and futures market is still in its infancy in China, and there is a complicated process of understanding the illegal and criminal acts arising from its operation. At present, it is still unknown how many forms there are to manipulate the price of securities and futures trading and what will happen in the future. Therefore, this article makes a general provision on the behavior of manipulating the trading price of securities and futures by other methods. The so-called other methods, we think, should include the following situations at present: (1) taking advantage of one's position to raise or lower the trading price of securities and futures. This kind of situation mainly refers to the behavior of securities practitioners or securities management institutions to buy and sell securities by artificially lowering or raising the trading price of securities through time difference in order to achieve a certain purpose by taking advantage of their positions such as accepting entrustment and quotation. In stock trading, buyers and sellers do not meet directly, and the computer groups unspecified buyers and sellers according to the instructions of customers and the principle of time and price priority. In violation of this principle, securities institutions or their employees depress or raise the price of securities transactions in quotation, bidding and other links, they will not close the transaction, and the transactions that should not be closed will infringe the interests of investors. If the circumstances are serious, it shall be punished as a crime. (2) empty. Zhakong refers to the behavior that a manipulation group in the securities market absorbs the circulation of a stock, so that short sellers have no other source to make up for the stock except this group, and Zhakong Group takes the opportunity to manipulate the securities price. Punching can be divided into manual punching and natural punching. Natural short selling is that several groups compete for the controlling right of the same company, so the stock price rises, and people who don't know it start short selling, and finally get the same result as manipulating short selling. Natural short selling does not have the intention to manipulate the price of securities trading and should not be punished as a crime; If the circumstances of stabbing by hand are serious, it shall be punished as a crime. (3) Closed speculation. Liquidation speculation is also called speculation by using the price limit system. This is one of the means used by some powerful people to raise or suppress the stock price. The daily limit system is the highest allowable price of each stock on each trading day stipulated by the state. The original intention of establishing this system in China was to curb excessive speculation and prevent the stock price from soaring and plunging, but it was later used by some lawless elements to manipulate the market. For example, in order to achieve the purpose of pulling the boat, the actor invested a certain amount of money to buy it at the opening price, sealed the handicap at the daily limit price, creating the illusion that many parties were aggressive, and then used the reluctance of shareholders to attract more buyers to follow up, and then he used the means of rummaging around to withdraw the buying funds.

According to this article, the act of manipulating the trading price of securities and futures, which constitutes a crime, must meet the standard of serious circumstances. China's securities and futures market is still in its infancy, with insufficient experience in securities market management and imperfect relevant legal systems and securities and futures industry regulations. Therefore, this law should only convict and punish the most harmful securities and futures violations. China's securities and futures regulatory authorities oppose excessive speculation, but tolerate moderate speculation in the securities and futures market. Speculation in the securities and futures markets is inevitable. The main body of securities and futures trading is for profit, and it is an eternal phenomenon that retail investors fight with bookmakers and bulls and bears. Many stocks in China stock market have bookmakers. There are many ways for bookmakers to make a fortune, all of which rely on the advantages of holding shares or money and using various means. Create various bull traps or bear trap to achieve the goal of high throwing and low sucking. If the banker does not violate the securities laws and regulations, the management tolerates his existence. If the banker's behavior is completely banned, it seems that it is not conducive to cultivating market popularity. However, as long as the banker's behavior violates the securities laws and regulations, it should be investigated; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law. Criminal sanctions are the most deterrent and the last resort.

Because the seriousness of the case is a principled provision, it still needs legislative interpretation or judicial interpretation. The so-called serious circumstances, we think, usually mean that the actor was punished for manipulating the prices of securities and futures markets and carried out such acts; Causing adverse social impact; Lead to the sharp rise and fall of securities and futures prices, seriously affecting the trading order of securities and futures markets; Causing huge losses to public investors; The actor illegally gains or avoids huge losses, and so on.

(3) Main elements

The subject of this crime is the general subject, and any natural person who has reached the age of criminal responsibility and has criminal responsibility ability can become the subject of this crime; According to the second paragraph of this article, a unit can also constitute this crime. If a unit commits this crime, it shall implement the system of two penalties, that is, the unit shall be fined and the directly responsible person in charge and other directly responsible personnel shall be punished.

(4) Subjective factors

Subjectively, this crime can only be constituted intentionally, with the purpose of obtaining illegitimate interests or transferring risks. If the staff neglects their duties, resulting in serious inaccuracy of relevant information and confusion of the stock market, it is a negligent act and cannot be punished as this crime.

Two, how to determine the crime of manipulating the price of securities and futures trading?

(A) the boundaries between this crime and non-crime

The crime of manipulating the price of securities and futures trading belongs to the crime of circumstances, that is, "serious circumstances" is the necessary constituent element of its establishment. If the actor manipulates the price of securities and futures trading objectively, subjectively, it is indeed out of direct intention, but the circumstances of the whole case are not serious enough, and his behavior does not constitute a crime, but only belongs to the general illegal behavior in the securities and futures market. Relatively speaking, illegal manipulation is less harmful to society, and only those manipulations that are more harmful to society and reach the degree of "serious circumstances" without punishment constitute the crime of manipulating the price of securities and futures trading. As for the severity of the whole case, we can generally consider it from the following aspects: 1, the degree of personal danger of the perpetrator, that is, whether the perpetrator is a first-time offender, an occasional offender, or a frequent or recidivist; 2. The result of the actor's behavior, that is, the amount that the actor actually seeks benefits or avoids losses, the actual situation of disrupting the order of the securities and futures market, and whether the adverse effects are serious; 3. The specific means and methods of the actor to manipulate the securities and futures market and the number of manipulations. If the actor's manipulation behavior does not reach "serious circumstances", only the corresponding administrative liability or civil liability shall be investigated.

In addition, the manipulation of the price of securities and futures trading is extremely complicated in real life, sometimes mixed with legal behavior, and sometimes covered up by legal trading behavior. This requires the judicial organs to strictly grasp the basic elements of the crime of manipulating the trading price of securities and futures, and distinguish the behavior of manipulating the trading price from legal trading.

(2) The boundary between this crime and the crime of deceiving investors to buy and sell securities and futures contracts.

The crime of manipulating the trading price of securities and futures affects the normal price of the securities market, creates the illusion of the securities and futures market, induces or causes investors to make investment decisions without knowing the truth, and deceives investors to buy and sell securities and futures contracts, which means that the actor deliberately provides false information, forges, alters or destroys trading records, and induces investors to buy and sell securities and futures contracts, resulting in serious consequences. Obviously, the crime of manipulating the price of securities and futures trading and the crime of tricking investors into buying and selling securities and futures contracts all involve that securities investors may or actually make securities trading behaviors that are not in line with their wishes under untrue circumstances, so there is a certain connection. There are the following differences between the two crimes: 1. Different themes. The former belongs to the general subject, that is, the person who has reached the age of criminal responsibility and has the ability of criminal responsibility. Most of them are securities and futures investors or personnel engaged in securities issuance, securities and futures trading and related activities. The latter are special subjects, namely employees of stock exchanges, futures exchanges, securities companies, futures brokerage companies, securities associations, futures industry associations or securities and futures supervision and management departments. 2. Objectively, it is different. The former is that the actor influences the price of securities and futures trading by manipulating the market, creates a false securities and futures market, and induces other investors to participate in securities and futures trading, thus benefiting from it; the latter is that the actor induces investors to buy and sell securities and futures contracts by providing false information, forging, altering or destroying trading records. Visible, on the one hand, the two incentives are different, the former is abnormal securities and futures market, the latter is false information or untrue transaction records, on the other hand, there are differences in the subjective fault of the deceived, the former deception is indirect, the latter deception is direct, therefore, the former deceived has a higher degree of subjective fault, and the corresponding responsibility is also greater.

3. How many years have you been sentenced for the crime of manipulating the price of securities and futures trading?

Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also or solely be fined not less than one time but not more than five times the illegal income.

If a unit commits this crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.