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近年来,在IPO资源紧张、新股发行广受热捧的大环境下,证券从业人员、监管人员通过权力寻租,在公司筹备上市的过程中以低于市场价格的对价获取拟上市公司股权,待上市后抛售获利的现象屡有发生。此类现象具有严重的社会危害性,却面临性质认定困难、行政处罚不力、刑事手段缺失等问题。利用职务便利低价入股符合受贿罪和非国家工作人员受贿罪构成要件,应纳入刑法规制范围。受贿金额应在区别是否有机构投资者同期入股的情况下按照入股时股权市场价值与实际出资之差计算,对于入股后股权升值部分则应予以划分,分别按照犯罪孳息和合法收入对待。
In recent years, under the environment of intense IPO resources and IPO issuance, securities practitioners and supervisors, through power rent-seeking, obtain shares of the company to be listed at a price lower than the market price during the preparation of the listing of the company, To be listed after the sale of profit often occur. Such phenomena have serious social harmfulness, but they face such problems as the difficulty of identifying nature, the weak administrative punishment and the lack of criminal means. Use of positions to facilitate low-cost shares in line with the crime of accepting bribes and non-state staff elements of bribery should be included in the scope of criminal law. The amount of the bribe should be calculated according to the difference between the market value of the equity market and the actual capital contribution when the institutional investors make the difference over the same period. For the part of the equity appreciation after the shareholding, they should be divided according to the crime fruits and legal income respectively.