Insider trading

Criminal law is ultima ratio! A criminal law which leaves the citizens their freedom of action and which is, moreover, only an instrument of social control within a structure of different regulatory mechanisms, is therefore necessarily fragmentary. A legislator who takes these principles to heart will create only those criminal offenses which, on the one hand, are narrow enough to leave behaviour that is not socially harmful unsanctioned and, on the other hand, which, in their area-specific totality, leave the necessary gaps for the socially desirable or tolerated behaviour of people. Criminal law can thus either lead to an inappropriate curtailment of freedom of action or devalue itself from the outset as mere symbolic criminal law, if generally accepted and possibly even required by extra-criminal codes of conduct are made punishable. The text examines whether the punishment of insider trading can be justified solely by the consideration of “playing by the rules of the game” or whether interests beyond this aspect of a formal discourse are required, which are protected. Finally, the question is asked whether there are objectively particularly dangerous behaviours in the capital market that can be prohibited per se according to preventive considerations. For this aspect, some historical considerations by William Blackstone will be fruitfully utilised.