On September 28, 2024, the 5th Terra Nova Criminal Defense Forum was successfully held in Beijing and Shenzhen, focusing on the core topic of “Prevention, Control and Resolution of Financial Criminal Risks”. This forum was guided by Beijing Lawyers Law Research Association and Digital Yinghe, organized by Yinghe International, co-organized by Shenzhen Lawyers Association Criminal-Civilian Cross-Legal Committee, and co-organized by Beijing Yinghe Law Firm. Nearly 40 criminal defense experts and renowned lawyers respectively discussed in-depth the identification of financial criminal risks, in-depth interpretation of laws and policies, effective risk prevention and control strategies, and response mechanisms for criminal crises, contributing a lot of cutting-edge insights and practical experience. Lawyer Wang Jiaming, partner of King&Capital Law Firm and Doctor of Laws, was invited to participate in the meeting and made a keynote speech on the topic of “Cross-practice Issues of Criminal, Civil and Administrative Crimes of Financial and Securities Crimes”.
Zhou Lei, Director of Criminal Practice Center of Beijing Yinghe Law Firm (National) and Director of Digital Yinghe Criminal Professional Committee, was the chief moderator of the forum. Sun Zaichen, Executive Vice President of Beijing Lawyers Law Society, Founder of Digital Terra Nova, Founder of Terra Nova International, and Director of Beijing Terra Nova Law Firm, made an opening speech.
Lawyer Wang Jiaming firstly focused on the convergence of execution and punishment procedures of insider trading in her speech. She pointed out that, as a typical administrative crime, how the execution and punishment procedures are converged, how the content of evidence is transformed, and how the standard of evidence is unified are the key issues in the current law enforcement of securities violations and crimes. Based on the current administrative penalties in the first, criminal accountability after the case handling procedures, criminal lawyers advance to the administrative stage of the necessity to intervene in the case is very prominent.
Wang Jiaming analyzed the results of cases in practice with typical cases, and analyzed the different enforcement forms of criminal priority, administrative priority, and parallel administrative and criminal procedures presented in the connection of insider trading. She emphasized that in the enforcement process of insider trading cases, due to the “presumptive evidence standard” adopted in administrative procedures, “objective documentary evidence is the king”, which is different from the “subject-object consistency principle” in criminal cases, and the standard of conviction under the “subject-object consistency principle”. The standard of conviction under the “subject-object consistency principle” of criminal cases is not the same, which leads to the high demand for obtaining confessions for transferring to criminal proceedings.
Wang Jiaming also elaborated on the execution evidence of securities market manipulation from the perspective of evidence law. She pointed out that the “determination letter” made by the Securities and Futures Commission (SFC) is very important in the case of securities market manipulation. However, the “letter of determination” itself does not belong to any of the types of evidence stipulated in the Criminal Procedure Law, which leads to the unclear nature of the “letter of determination” in criminal proceedings, as it is used as one of the materials for finalizing the case, but does not belong to the statutory types of evidence. Therefore, the nature of such materials need to be clarified, in order to better apply the law in practice, so that the “judgment is based on”.
Finally, WangJiaMing lawyers combined with their own rich securities criminal business experience, with a practical case led to the violation of the criminal and civil boundaries of the letter disclosure, she pointed out that the listed company in the betting on the acquisition of the business, due to the acquired company's financial falsification of the listed company's violation of the disclosure of the responsibility of the problem, but also the practice of the phenomenon is more frequent. In this case, due to the current conditions for listed companies to exempt from the responsibility of violation of information disclosure is not clear, the listed company claimed to be cheated defense is difficult to be recognized as established, which leads to the listed company, although due diligence to perform due diligence work before the acquisition, but still can not get rid of the financial and after the table of the violation of information disclosure caused by the problem. And even if the criminal report, if ultimately did not get the acquirer constitutes a fraud judgment, the listed company is also very difficult to get rid of the responsibility of the violation of the letter of the ultimate consequences can only be produced by the listed company and the vast number of investors to pay the bill.
Wang Jiaming reminded that as a company in the capital market involving many investors, whether it is operating activities, financing activities, or mergers and acquisitions, restructuring business, the criminal risk of related activities and business grasp should pay particular attention to the prevention.
The success of this forum shows the vitality and professionalism in the field of criminal defense, builds a platform for legal experts and lawyers to exchange ideas and share experiences, and becomes a bridge to promote the combination of legal practice and theoretical research. In the future, King&Capital lawyers will continue to deepen their specialties, improve their professional skills, strengthen communication and learning with legal professionals, actively adapt to the development requirements of the new era, and contribute to the construction of the rule of law for the country's King&Capital power.
