Guiding Case No. 61 of the Supreme People's Court: Case concerning Ma Le's Trading by Using Undisclosed Information (case concerning trading by using undisclosed information)

指导案例61号：马乐利用未公开信息交易案

【法宝引证码】

Type of Dispute: Criminal --＞Undermining Order of Socialist Market Economy
Legal document： Judgment
Procedural status： Retrial

Guiding Case No. 61 of the Supreme People's Court: Case concerning Ma Le's Trading by Using Undisclosed Information		指导案例61号：马乐利用未公开信息交易案
(Issued on June 30, 2016 as deliberated and adopted by the Judicial Committee of the Supreme People's Court)		（最高人民法院审判委员会讨论通过　2016年6月30日发布）
Guiding Case No. 61		指导案例61号
Keywords		关键词
criminal; crime of trading by using undisclosed information; invocation of statutory sentences; especially serious circumstances		刑事/利用未公开信息交易罪/援引法定刑/情节特别严重
Key Points of Judgment		裁判要点
The invocation of statutory sentences for the crime of trading by using undisclosed information as prescribed in paragraph 4 of Article 180 of the Criminal Law shall be the invocation of all statutory sentences for the crime of engaging in insider trading and divulging inside information as prescribed in paragraph 1 thereof. That is to say, there shall be two circumstances, “serious circumstances” and “especially serious circumstances,” and two sentencing ranges for the crime of trading by using undisclosed information.		刑法第一百八十条第四款规定的利用未公开信息交易罪援引法定刑的情形，应当是对第一款内幕交易、泄露内幕信息罪全部法定刑的引用，即利用未公开信息交易罪应有“情节严重”“情节特别严重”两种情形和两个量刑档次。
Relevant Legal Provisions		相关法条
Article 180 of the Criminal Law of the People's Republic of China		《中华人民共和国刑法》第180条
Basic Facts		基本案情
From March 9, 2011 to May 30, 2013, defendant Ma Le served as the manager of the selected Bosera stock and security investment funds under Bosera Funds Management Co., Ltd., fully responsible for the market of investment funds and investment stocks. He mastered such undisclosed information as the underlying stocks in the trading of selected Bosera stock and security investment funds, the trading hours, and the trading amount. During the term of office, by using the aforesaid undisclosed information he mastered, Ma Le engaged in securities trading activities related to the said information, operated three stock accounts of Jin, A Yan, and B Yan under his control, and placed orders through an anonymous Easyown phone card he temporarily purchased. He traded 76 identical stocks through “selected Bosera” fund accounts under his management (one to five trading days) in advance, simultaneously, or slightly later (for one to two trading days), with the accumulative trading amount of over 1.05 billion yuan and illegal profits of 18,833,374.74 yuan. On July 17, 2013, Ma Le voluntarily surrendered himself to the Public Security Bureau of Shenzhen City and truthfully confessed to his crime after his apprehension, which was voluntary surrender; Ma Le showed repentance, the illicit income could be refunded in full amount from seized or frozen assets, and Ma Le could also pay the fine imposed on him in full amount.		2011年3月9日至2013年5月30日期间，被告人马乐担任博时基金管理有限公司旗下的博时精选股票证券投资经理，全权负责投资基金投资股票市场，掌握了博时精选股票证券投资基金交易的标的股票、交易时间和交易数量等未公开信息。马乐在任职期间利用其掌控的上述未公开信息，从事与该信息相关的证券交易活动，操作自己控制的“金某”“严某甲”“严某乙”三个股票账户，通过临时购买的不记名神州行电话卡下单，先于（1-5个交易日）、同期或稍晚于（1-2个交易日）其管理的“博时精选”基金账户买卖相同股票76只，累计成交金额10.5亿余元，非法获利18833374.74元。2013年7月17日，马乐主动到深圳市公安局投案，且到案之后能如实供述其所犯罪行，属自首；马乐认罪态度良好，违法所得能从扣押、冻结的财产中全额返还，判处的罚金亦能全额缴纳。
Judgment		裁判结果
In the criminal judgment (No. 27 [2014], First, Criminal DivisionII, IPC, Shenzhen), the Intermediate People's Court of Shenzhen City, Guangdong Province held that the acts of defendant Ma Le constituted a crime of trading by using undisclosed information; however, the Criminal Law did not prescribe “especially serious circumstances” for the crime of trading by using undisclosed information. Therefore, the acts of Ma Le could only be determined as “serious circumstances.” For his voluntary surrender, Ma Le may be given a lighter punishment according to the law; Ma Le pled guilty, returned all illicit income, paid the fine in full amount, and actually showed repentance; besides, it was found after investigation and evaluation by the Division of Community Correction, Resettlement, Assistance, and Education under the Justice Bureau of Futian District, Shenzhen City that Ma Le's probation had no major adverse impact on the community where he resided. Therefore, Ma Le satisfied conditions for the application of probation. Therefore, the Intermediate People's Court of Shenzhen City sentenced Ma Le to a fixed-term imprisonment of three year with a five-year suspension of execution and imposed a fine of 18.84 million yuan on him; recovered the illicit income of 18,833,374.74 yuan according to the law, and turned it over to the state treasury.		广东省深圳市中级人民法院（2014）深中法刑二初字第27号刑事判决认为，被告人马乐的行为已构成利用未公开信息交易罪。但刑法中并未对利用未公开信息交易罪规定“情节特别严重”的情形，因此只能认定马乐的行为属于“情节严重”。马乐自首，依法可以从轻处罚；马乐认罪态度良好，违法所得能全额返还，罚金亦能全额缴纳，确有悔罪表现；另经深圳市福田区司法局社区矫正和安置帮教科调查评估，对马乐宣告缓刑对其所居住的社区没有重大不良影响，符合适用缓刑的条件。遂以利用未公开信息交易罪判处马乐有期徒刑三年，缓刑五年，并处罚金人民币1884万元；违法所得人民币18833374.74元依法予以追缴，上缴国库。
After the judgment was pronounced, the People's Procuratorate of Shenzhen City filed an appeal and held that the acts of defendant Ma Le should be determined as falling under especially serious criminal circumstances and Ma Le should be punished according to the sentencing range of “especially serious circumstances.” The judgment of first instance was erroneous in the application of law and obviously inappropriate in sentencing. Therefore, it should be reversed according to the law.		宣判后，深圳市人民检察院提出抗诉认为，被告人马乐的行为应认定为犯罪情节特别严重，依照“情节特别严重”的量刑档次处罚。一审判决适用法律错误，量刑明显不当，应当依法改判。
In the criminal ruling (No. 137 [2014], Final, Criminal DivisionII, HPC, Guangdong), the Higher People's Court of Guangdong Province held that: Under paragraph 4 of Article 180 of the Criminal Law, “(any practitioner of a stock exchange, a futures exchange, a securities company, a futures brokerage company, a fund management company, a commercial bank, an insurance company or any other financial institution or any staff member of the relevant regulatory department or industry association) engages in trading by using undisclosed information and the circumstances are serious, such practitioner or staff member should be punished under paragraph 1 thereof”; however, there are no provisions on “especially serious circumstances” for the crime of trading by using undisclosed information in this clause; under paragraph 1 thereof, where the circumstances are serious, such practitioner or staff member should be sentenced to a fixed-term imprisonment of not more than five years or criminal detention, and/or be imposed a fine one to five times the illicit income. Therefore, Ma Le's trading by using undisclosed information fell under serious criminal circumstances and Ma Le should be punished within this sentencing range. The original judgment was appropriate in sentencing and the appeal grounds of the appealing organ were untenable, which should not be admitted. Therefore, the Higher People's Court of Guangdong Province ruled to dismiss the appeal and affirm the original judgment.		广东省高级人民法院（2014）粤高法刑二终字第137号刑事裁定认为，刑法第一百八十条第四款规定，利用未公开信息交易，情节严重的，依照第一款的规定处罚，该条款并未对利用未公开信息交易罪规定有“情节特别严重”情形；而根据第一百八十条第一款的规定，情节严重的，处五年以下有期徒刑或者拘役，并处或者单处违法所得一倍以上五倍以下罚金，故马乐利用未公开信息交易，属于犯罪情节严重，应在该量刑幅度内判处刑罚。原审判决量刑适当，抗诉机关的抗诉理由不成立，不予采纳。遂裁定驳回抗诉，维持原判。
After the ruling of second instance came into force, the People's Procuratorate of Guangdong Province requested the Supreme People's Procuratorate to file an appeal with the Supreme People's Court according to the trial supervision procedure. In the appeal, the Supreme People's Procuratorate alleged that paragraph 4 of Article 180 of the Criminal Law fell under circumstances with the invocation of statutory sentences and all provisions on punishment in paragraph 1 thereof should be invoked; the illegality and accountability of the crime of trading by using undisclosed information were equivalent to those of the crime of engaging in insider trading or divulging inside information, so were the statutory sentences thereof; and the acts of Ma Le should be determined as especially serious criminal circumstances and it was obviously inappropriate to apply probation on him. On the ground that there were no provisions on “especially serious circumstances” for the crime of trading by using undisclosed information under paragraph 4 of Article 180 of the Criminal Law, the criminal offense of Ma Le was degraded in the final ruling of this case, which was erroneous in the application of law and resulted in inappropriate sentencing. Therefore, the final ruling should be corrected according to the law.		二审裁定生效后，广东省人民检察院提请最高人民检察院按照审判监督程序向最高人民法院提出抗诉。最高人民检察院抗诉提出，刑法第一百八十条第四款属于援引法定刑的情形，应当引用第一款处罚的全部规定；利用未公开信息交易罪与内幕交易、泄露内幕信息罪的违法与责任程度相当，法定刑亦应相当；马乐的行为应当认定为犯罪情节特别严重，对其适用缓刑明显不当。本案终审裁定以刑法第一百八十条第四款未对利用未公开信息交易罪规定有“情节特别严重”为由，降格评价马乐的犯罪行为，属于适用法律确有错误，导致量刑不当，应当依法纠正。
The Supreme People's Court formed a collegial bench to directly retry this case according to the law and held an open hearing. The facts found in the retrial were basically identical with those found in the original trial. It was determined in the original judgment that the amount of illicit profits defendant in the original trial Ma Le obtained was 18,833,374.74 yuan, which was incorrect in calculation and should be 19,120,246.98 yuan. Therefore, it should be corrected according to the law. In the criminal judgment (No. 1 [2015], Criminal Division, Supreme People's Court), the Supreme People's Court held that the acts of Ma Le constituted a crime of trading by using undisclosed information. By using undisclosed information, Ma Le traded 76 stocks by using the undisclosed information, with the accumulative trading amount of over 1.05 billion yuan and the illicit profits of over 19.12 million yuan, which fell under especially serious circumstances. Ma Le voluntarily surrendered himself by returning home from abroad, which fell under the statutory sentencing circumstances for a lighter or mitigated punishment; and not subject to the control of others, he cashed stocks and deposited it in the three accounts involved, voluntarily provided an explanation to the China Securities Regulatory Commission, refunded all illicit income, pled guilty and showed repentance, did not squander the illicit money, and has paid the fine imposed on him in the original judgment. In consideration of the said discretionary sentencing circumstances for a lighter punishment, Ma Le may be given a mitigated punishment. With clear facts, true and sufficient evidence, and accurate conviction, the judgment of first instance and the ruling of second instance were erroneous in the comprehension of some clauses of the law, resulting in improper sentencing, which should be corrected. In accordance with the provisions of paragraphs 4 and 1 of Article 180, paragraph 1 of Article 67, and Articles 52, 53, and 64 of the Criminal Law of the People's Republic of China, and item (3) of Article 389 of the Interpretation of the Supreme People's Court on Applying the Criminal Procedure Law of the People's Republic of China, the Supreme People's Court rendered a judgment that: (1) the conviction of defendant in the original trial, Ma Le, in the criminal ruling (No. 137 [2014], Final, Civil DivisionII, HPC, Guangdong) rendered by the Higher People's Court of Guangdong Province and the criminal judgment (No. 27 [2014], First, Civil DivisionII, IPC, Shenzhen) rendered by the Intermediate People's Court of Shenzhen City should be affirmed; (2) the sentencing of defendant in the original trial, Ma Le, and recovery of the illicit income in the criminal ruling (No. 137 [2014], Final, Civil DivisionII, HPC, Guangdong) rendered by the Higher People's Court of Guangdong Province and the criminal judgment (No. 27 [2014], First, Civil DivisionII, IPC, Shenzhen) rendered by the Intermediate People's Court of Shenzhen City should be set aside; (3) defendant in the original trial, Ma Le, should be sentenced to a fixed-term imprisonment of three years under the crime of trading by using undisclosed information and a fine of 19.13 million yuan should be imposed on him; and (4) the illicit income of 19,120,246.98 yuan should be recovered and turned over to the state treasury according to the law.		最高人民法院依法组成合议庭对该案直接进行再审，并公开开庭审理了本案。再审查明的事实与原审基本相同，原审认定被告人马乐非法获利数额为18833374.74元存在计算错误，实际为19120246.98元，依法应当予以更正。最高人民法院（2015）刑抗字第1号刑事判决认为，原审被告人马乐的行为已构成利用未公开信息交易罪。马乐利用未公开信息交易股票76只，累计成交额10.5亿余元，非法获利1912万余元，属于情节特别严重。鉴于马乐具有主动从境外回国投案自首法定从轻、减刑处罚情节；在未受控制的情况下，将股票兑成现金存在涉案三个账户中并主动向中国证券监督管理委员会说明情况，退还了全部违法所得，认罪悔罪态度好，赃款未挥霍，原判罚金刑得已全部履行等酌定从轻处罚情节，对马乐可予减轻处罚。第一审判决、第二审裁定认定事实清楚，证据确实、充分，定罪准确，但因对法律条文理解错误，导致量刑不当，应予纠正。依照《中华人民共和国刑法》第一百八十条第四款、第一款、第六十七条第一款、第五十二条、第五十三条、第六十四条及《最高人民法院关于适用〈中华人民共和国刑事诉讼法〉的解释》第三百八十九条第（三）项的规定，判决如下：一、维持广东省高级人民法院（2014）粤高法刑二终字第137号刑事裁定和深圳市中级人民法院（2014）深中法刑二初字第27号刑事判决中对原审被告人马乐的定罪部分；二、撤销广东省高级人民法院（2014）粤高法刑二终字第137号刑事裁定和深圳市中级人民法院（2014）深中法刑二初字第27号刑事判决中对原审被告人马乐的量刑及追缴违法所得部分；三、原审被告人马乐犯利用未公开信息交易罪，判处有期徒刑三年，并处罚金人民币1913万元；四、违法所得人民币19120246.98元依法予以追缴，上缴国库。
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