Guided by preventing and resolving financial risks, this revision embodies the goal of ensuring financial reform and maintaining financial order, adapts to the reform of registration system with information disclosure as the core, and is linked with the revision of the new Securities Law, which greatly increases the criminal punishment for crimes such as fraudulent issuance and false information disclosure, strengthens the criminal responsibility investigation of "key minorities" such as controlling shareholders, and clearly regards sponsors as the main body of crimes such as providing false certification documents.
Therefore, the contents of this criminal law amendment on securities and futures crimes are mainly in four aspects: fraudulent issuance, violation of information disclosure, manipulation of the market, and false certification documents issued by intermediaries. This compliance risk control knowledge will be divided into two stages. The first one is to study the two crimes of fraudulent issuance and violation of information disclosure; The next issue will explain the charges of manipulating the market and issuing false documents.
Amendment (11) of the Criminal Law specifically explains the contents of the amendments to the crime of fraudulent issuance and the crime of violating information disclosure as follows:
Article 160 Crime of fraudulently issuing stocks and bonds
In recent years, due to the low crime cost, a series of vicious financial fraud cases, such as fraudulent financial reports of Kangmei Pharmaceutical, scallops running away from Zhangzidao and inflated profits of Luckin Coffee, have occurred continuously, seriously damaging the legitimate rights and interests of investors and endangering the normal operation order of the securities and futures market. Previously, due to factors such as legislation, the CSRC imposed a maximum penalty of 600,000 yuan on fraudulent issuance and letter fraud, which was extremely mismatched compared with some fraudulent issuers with billions or even billions. With the implementation of the 11th Amendment to the Criminal Law, the administrative penalty of 600,000 yuan will become history. The main points of its amendment to securities fraudulent issuance are as follows:
1. Expanded the list of securities issuance documents.
The disclosure of false information in stock and bond issuance documents other than the prospectus, subscription book, company and enterprise bond raising methods should be included in the scope of criminal law regulation.
2. Increase the types of securities in the crime of fraudulent issuance
Incorporating depositary receipts and other securities recognized by the State Council law into the crime of fraudulent issuance of shares provides a legal basis for cracking down on fraudulent issuance of such securities in the future, which is consistent with the revision of the securities law.
3. Increase the punishment for fraudulent issuance.
In terms of sentencing, the aggravating circumstance of "the amount of fraudulent issuance is extremely huge, the consequences are particularly serious or there are other particularly serious circumstances" is added, and the perpetrator with aggravated circumstances is sentenced to more than five years in prison and fined, that is, the statutory maximum penalty is raised from five years in prison to 15 years in prison;
In terms of fines, the range of fines for individuals was changed from 1%-5% for illegal fund-raising to "concurrently fined", and the upper limit of 5% was cancelled; The range of fines imposed on units has been increased from 1%-5% of illegal fund-raising to 20%- 1 times.
4. Strengthen the criminal responsibility of controlling shareholders and actual controllers.
Based on the important role of controlling shareholder and actual controller in the crime of fraudulent issuance, the special criminal responsibility of controlling shareholder and actual controller for organizing and abetting the crime of fraudulent issuance has been strengthened, and the amount of personal fine is set at 20%- 1 times.
Two. Article 16 1 Crime of disclosing or not disclosing important information in violation of regulations.
Information disclosure is the core of capital market operation. Illegal disclosure or non-disclosure of important information will disrupt the order of the capital market and cause financial risks. Therefore, information disclosure fraud has always been the focus of criminal law. The amendment greatly increased the punishment for the crime of illegal disclosure and non-disclosure of important information, and once again reflected the strict supervision of the state on the performance of information disclosure obligations by relevant subjects. The main points of revision are as follows:
1. Increase penalties for information disclosure violations.
In terms of prison term: the statutory penalty has been raised in an all-round way, with a maximum of 10 years in prison. Before the amendment, the statutory penalty for the crime of illegally disclosing or not disclosing important information was fixed-term imprisonment of not more than three years or criminal detention. The amendment has increased the punishment for illegal acts of information disclosure. If the circumstances are serious, they will be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of more than 5 years 10 years.
Fines: cancel the upper limit of fines. The amendment removes the provision that the fine for the crime of illegal disclosure or non-disclosure of important information is within the range of 20,000-200,000 yuan, and directly stipulates a concurrent (or single fine).
2. Clarify the criminal responsibility of the controlling shareholder and the actual controller.
In view of the illegal information disclosure caused by the organization, instigation or concealment of important matters by the controlling shareholders and actual controllers of companies and enterprises, the amendment specifically stipulates the penalty, which keeps an effective connection with the relevant provisions of the Securities Law, and also reflects the fact that the above-mentioned personnel often play an important role in such illegal and criminal acts.
Reference article:
1.《
Interpretation: "A Heavy Punch" in Crime Control in Capital Market, Han _, Beijing King & Wood Law Firm;
2. Interpretation of Securities and Futures Crimes in Criminal Law Amendment (XI), Dundee and Deheng Law Firm;
3. From
Liang Jian of Du Heng Law Firm talks about criminal risks in capital market business.
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