The raison d’être of capital markets is investor confidence and equality of opportunity. The erosion of this trust threatens not only individual investors but also macroeconomic stability. For this reason, the Capital Markets Law No. 6362 (CML) has placed market-disruptive actions under heavy criminal sanctions. In this article, the two most common types of offenses encountered in practice, Information Abuse (Art. 106) and Market Fraud (Art. 107), will be analyzed in terms of criminal law technique and the elements of typicality.
1. The Offense of Information Abuse (Insider Trading) – CML Art. 106
Information abuse is the execution of transactions based on “inside information” that could affect the price of capital market instruments but has not yet been disclosed to the public. The main objective of this offense is to prevent the asymmetric distribution of information between those with access to information and the general investor base from turning into unfair advantage.
A. Material Elements of Typicality
- Perpetrator: This is a subject-specific crime (special crime). The perpetrator can only be those persons listed in a limited number (numerus clausus) under Article 106. These include issuers, board members, those who access information due to their job/profession (auditors, lawyers), those who obtain the information through a crime, or those who reach this information directly or indirectly while knowing it is inside information.
- Act: To give, cancel, or change buy-sell orders for capital market instruments based on inside information or information regarding business partnerships.
- Subject: The information constitutes the subject of the crime; it is “inside information” that relates directly or indirectly to the capital market instrument or the issuer, has not been disclosed to the public, and is of a nature that could significantly affect prices when disclosed.
B. Mental Element
The crime can only be committed with direct intent. The perpetrator must know that the information in their possession is inside/private information and must have the will to establish a transaction based on this information.
2. The Offense of Market Fraud (Manipulation) – CML Art. 107
Market fraud is the activity of creating an artificial price or volume by preventing the formation of supply and demand under free market conditions.
A. Transaction-Based Market Fraud (Art. 107/1)
This type of offense punishes actual movements aimed at disrupting the natural supply-demand balance in the market.
- Act: Buying and selling, giving orders, canceling orders, or performing account movements.
- Result: From the perspective of typicality, it is not required for a loss to occur; it is sufficient that the transaction is of a nature that “could create a false impression” about the price or supply-demand. In this respect, it is an abstract danger crime.
- Concept of Artificial Market: The perpetrator’s goal is to drive the price up by making it seem as if there is real demand in the market or to push it down with artificial pressure.
B. Information-Based Market Fraud (Art. 107/2)
Here, “statement” rather than “transaction” is at the forefront. It is the dissemination of false, wrong, or misleading information with the aim of affecting the price or value of capital market instruments.
- Mental Element: In information-based manipulation, the perpetrator must act with a specific motive (intent). The law specifies this as “with the aim of affecting the price.”
3. Effective Repentance and Special Procedure of Investigation
Capital market offenses differ sharply from general crime types in the Turkish Penal Code on two points:
- Requirement for Investigation: For an investigation to be initiated regarding these crimes, it is mandatory for the Capital Markets Board (CMB) to submit a written application to the Chief Public Prosecutor’s Office. This application is a “procedural requirement,” unlike Art. 158 of the CMK.
- Effective Repentance (Art. 107/3): If a perpetrator of transaction-based market fraud shows remorse and pays twice the benefit obtained (or the amount determined by the Board) to the Treasury, results such as non-prosecution in the investigation phase or reduction/remission of the penalty in the prosecution phase may arise.
4. Comparative Summary Table
| Criterion | Information Abuse (Art. 106) | Market Fraud (Art. 107) |
| Perpetrator | Only “Insiders” (Special Crime) | Anyone |
| Legal Subject | Equality of Opportunity | Market Transparency and Stability |
| Action | Using Real and Secret Information | Artificial/False Info or Transaction |
| Investigation | CMB Application Mandatory | CMB Application Mandatory |
Conclusion
The provisions of CML Art. 106 and 107 aim to protect investors who trade honestly in the market. As a legal practitioner, when analyzing these crimes, it should not be considered sufficient that the act merely fits the definition in the law; the effect of the transaction on the “price formation mechanism” in the market and the specific intent of the perpetrator must be examined.
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