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All Journal Lentera Hukum Journal of Law and Legal Reform
Tokuyama, Shintaro
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Law, Crime, Criminology & Criminal Justice

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Efficient Punishment for Insider Trader in Merger: Interjected Values of Economic Analysis of Law Sugianto, Fajar; Tokuyama, Shintaro
Lentera Hukum Vol. 11 No. 3 (2024): LENTERA HUKUM
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ejlh.v11i3.45295

Abstract

Corporate crime is one of the crimes that arise with the advancement of economic, technological, and trade liberalization activities. The problems with handling non-conventional crimes are due to the difficulty in determining the victims and criminal prosecution of perpetrators. Corporate liability and imposing sanctions on corporate entities are still strongly influenced by the societas delinquere non potest principle. One of the capital market crimes that may occur as a corporate crime is insider trading, which can be defined as securities trading transactions conducted by insiders utilizing insider information that has not been published. Information on a merger, a form of corporate restructuring, is categorized as material facts. When insider trading occurs in the merger process, verifying it for punishment is complicated considering the legal vacuum to convict such a crime. While closely related to financial matters, the prosecution of corporations also intersects with purposes and functions that protect society and individual offenders. Economic analysis of the law can answer the legal vacuum and determine the important aspects of proper legal practice, so that a specific and appropriate punishment can be found for the offense, considering that not all penalties can be imposed on corporations.KEYWORDS: Economic analysis of law, Punishment, Insider trading, Merger.
False Transaction vs Wash Trading: Addressing the Gap to Rebuild Market Confidence (Legal Implication in Indonesia and United States Capital Market Law) Sugianto, Fajar; Tokuyama, Shintaro
Journal of Law and Legal Reform Vol. 5 No. 1 (2024): Contemporary Global Issues on Law Reform, Legal Certainty, and Justice
Publisher : Universitas Negeri Semarang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15294/jllr.vol5i1.2094

Abstract

This paper is evidently about the legal comparison between Indonesia and the U.S on their views on market manipulation. There are several similarities between the Capital Market Law and SEA 1934, not only in terms but also in the elements. Articles 91 and 92 of Capital Market Law seem to mimic Section 9(a) (1) and (2) of SEA 1934. As both statues states similar prohibition in creating a misleading trading appearance and the purpose of inducing sales. This means that elements and tests applicable in the U.S. should also be applicable in Indonesia. Section 10(b) of SEA 1934 and SEC Rule 10b-5 serves to further supplement the application of Section 9 with its broad anti-manipulation provisions. Articles 91 and 92 of Capital Market Law cover the sales and purchase of stocks affected by the alleged manipulation that occurs only in the securities exchange as evident by the wording “on a/the Securities Exchange”. This is also observed in Section 9(a) (1) and (2) of SEA 1934 wherein the scope is limited to transactions in the “national securities exchange”. What this implies is that over-the-counter and block sales transactions are not protected under the statutes mentioned above. This issue is not addressed under the Capital Market Law, however Section 10(b) of SEA 1934 and its implementing regulation SEC Rule 10b-5 addresses this issue. Section 10(b) of SEA 1934 allows for broader authority of law enforcement as it includes “any security registered on a national securities exchange or any security not so registered”. This implies protection for a wider scope of securities transactions.
Co-Authors Fajar Sugianto