El delito de uso de información privilegiada en el mercado de valores, especialmente en el derecho penal español (art. 285 CP)

Resumo

The operations with stock-market privileged information, also called insider trading or operations of initiates, suppose an important impact for the correct operation of the stock market, reason for which the legal systems of many countries in Europe have established the prohibition of the use or provision of privileged information in the stock market not only in their administrative dispositions, but also in criminal laws. In this sense, the Spanish legislation describes the legal definition of the behaviour of the insider in art. 285 CP (Criminal or Penal Code, Código Penal)/1995, establishing prison or freedom depriving, rights depriving or fine or pecuniary penalties; however, the complicated typical or legal structure of the crime of initiates generates interesting problems of interpretation at the moment of applying the norm. Thus, for example, although insider trading is a genuine economic crime that protects a legal interest of collective nature, the typical or legal description demands the obtaining of a benefit or the causation or production of a damage, which has been suggested by an important doctrinal sector to emphasize the patrimonial content of the crime of initiates. In the same way, the establishment of quantitative limits to benefit or damage in art. 285CP has generated an intense debate about the dogmatic nature of this element; likewise, complicated interpretation problems appear in the application of the typical or legally defined behaviours, related to crime partners (principal and accessories), time of consummation, concurrence with other crimes or offences like the fraud or the existence of double sanctioning, penal and administrative. All these questions are analyzed and evaluated throughout this investigation, by means of the systematic presentation of the different elements that make up this complicated crime.