The Regulation of Insider Trading in China: A Critical Review and Proposals for Reform

Abstract

The purpose of this article is to critically examine Chinas insider trading regulation, and based upon the results of such examination, set out reform proposals for China. With the benefit of overseas experience, in a relatively short period of time, China has made a remarkable achievement in setting up its insider trading regulatory regime. There are, however, some serious problems with the Chinese law, due to the uncritical implantation of the ideas from foreign sources. This is strikingly illustrated by the loopholes in the definition of insiders which are inherently related to the confusion around the underlying theory of insider trading liability. The article first broadly describes the background of the regulation of insider trading in China, and then offers a detailed discussion of its content. Based on this, a critique of Chinas insider trading regulation is carried out. It appears that China has hastily imported two conflicting insider trading theories, namely the equality of access theory and the fiduciary-duty-based theories which include the classical theory and the misappropriation theory. A careful analysis suggests that the equality of access theory is preferable to the fiduciary-duty-based theories, especially in the context of China. It is further submitted that the Australian information connection only approach to the definition of insiders is both theoretically justifiable and practically manageable, and thus should be introduced to reform Chinas insider trading regulation.