Papers Category:Securities Finance Papers
- Futures Market Papers
Post Time:2011-12-26 10:57:00
[Abstract] are marked with a perfect futures Basic legal system of a country's level of development futures.
Most of the world futures markets, such as the United States, Germany and other countries or regions are almost always responsible for the design by the Exchange, he decided to launch a publicly traded new varieties in China to develop the futures market, futures market, it must reform the current administrative system, to strengthen the exchange of self-regulation, to ensure that its regulatory authority carried out, to uphold and safeguard the futures market, the centralized management of the regulatory system, to simplify of the futures regulatory authority.
[Keywords] Futures Trading Act, the Basic Law, futures, futures law
Liu Xiaonong (1971 -), male, Nanchang University, School of Economics and Management Lecturer, Research for the Economic Law, Wang Xiaodi (1966 A), female, Nanchang University, Associate Professor of Economics and Management, the main research directions of economic law. (Nanchang 330031 )
Futures Basic Law is to establish the basic principles of futures trading, futures trading system and the basic organization of the main fundamental law. Whether the Basic Law has improved futures futures marks the legal system of a country's development level of foreign futures markets in developed countries have largely developed the corresponding Basic Some scholars pointed out: "China's basic civil law system established today, with the exception is the lack of futures trading law." As early as 1995, China Futures Act was the Eighth National People's Congress into the agenda, but progress is slow, has yet to enact a specific futures Basic Law Legal system is not perfect, has restricted the healthy development of China's futures market, one of the main present, China Futures Act, the legislative process has started, therefore, study the world's major futures market laws and regulations , the development of China's futures law has an important reference.
First, the U.S. futures market laws and regulations in 1800, the U.S. futures market, when people just to "see contract" or "forward contract" transactions, and the contract was not a modern standardized contracts. At that time parties to the transaction can only contract or rely on prevailing business practices of mutual restraint until 1848, the United States formally established the world's first futures exchanges - the Chicago Grain Exchange, but neither the U.S. futures market, the development of the legal regulation of futures trading, and no government departments of supervision and rely solely on the Chicago Grain Exchange custom trading rules, to adjust the behavior between the futures and therefore, the market gradually showing chaos .1916, the U.S. government issued a <<Cotton Futures Act>> , but it is only provided grade of cotton, without regulation of futures trading behavior. Thus, the law is not the true sense of the Futures Trading Act U.S. history involving futures trading behavior of a true law of 1921 <<Exchange Act >> But the law was unconstitutional because the individual provisions have been declared invalid in 1922 by the revised and renamed as <<Grain Futures Act "to regulate the provision of services at the nine futures exchanges. <<Grain Futures Act>> Create of the rely mainly on the exchange of self-management, and supervision by the Ministry of Agriculture's regulatory framework can be said that this is the first official U.S. futures law.
1936 <<Grain Futures Act>> is <<Commodity Futures Trading Act>> replaced by <<Commodity Futures Trading Act>> 1974, <<Commodity Futures Trading Commission Act, "the predecessor and it has established an independent body - Commodity Futures Trading Commission (hereinafter referred to as CFTC). Commodity Futures Trading Commission has the regulatory power of the U.S. futures market, many, such as civil penalties for violations of the right, the right to compensation, decided to increase criminal penalties for violations of futures rights, so as to more effectively protect investors.
December 11, 2000, the United States through the <<Commodity Futures Modernization Act of 2000>> This is a look at the entire financial market reform law, and the current U.S. futures market, the main source of law which for the futures important part of the market are:
(1) the protection of investors. <<2000 Commodity Futures Modernization Act>> Chapter 3, paragraph (b) expressly provides that the purpose of enacting the law "to protect all market participants in order to prevent acts of fraud or other abuse, and dealing misuse of client assets; and promote innovation and the Chamber of Commerce reasonably ask, among other markets and fair competition among market participants. "
(2) change the CFTC as a futures market, the role of supervisor. The chapter (g) (5) (B) (iii) (Ⅲ) regulations, the Commodity Futures Trading Commission, "Federal Financial Management Authority to obtain the information required to enable management to institutions to carry out management or oversight responsibilities. "
(3) expand the range of market participants, according to the provisions of Chapter No. l, market participants, including two kinds of people: one is qualified parties to the contract, shall be acting in the interests of their participants, the other is eligible contract participants, ie sets Grid trading entity.
U.S. futures market is another source of law <<Code of Federal Regulations>> Chapter 17 - commodity futures and securities trading. This chapter is designed for the futures market, by the Futures Commission, the Futures Trading Act supporting legal norms, which along with the emergence of the United States Code generation, with the Futures Trading Act amendments and changes to Article 12 - Compensation rules, is to fully protect the rights and remedies of the parties, speed, justice and the provisions made. Section 166 of the customer protection rules, requiring customers to actually control their own accounts before any Futures Commission Merchant, Introducing Brokers, etc. not to The client performs transaction.
Second, the German futures market laws and regulations of the German futures market started several hundred years later than the stock market, the stock market began in 1558, and in the 20th century, 90 years ago, like China, German law also prohibits the speculative nature of futures transactions until 1990, the German Futures Exchange (DTB) was officially opened. With the accelerated process of economic integration in Europe and in Germany the dramatic changes in industrial areas, in order to develop the domestic futures market environment is more relaxed, Germany for implemented a series of capital market reform measures, such as amendments to relevant laws, etc., they promote the rapid development of the German futures market, so that in 1997 the birth of the Eurex (EUREX) in a few years time, they jumped to one of the world's largest futures exchange.
(A) the regulations by the German legal system for the futures market <<Securities and Exchange Law "<<Exchange Act>> and the composition of futures trading rules.
1, there is no specific legal aspects of the German futures market, "Futures Act>>, the German futures exchange futures trading behavior and long-term by the <<Securities Exchange Act of>> and <<Exchange Act" amended to adjust. 2004 <<Securities Exchange Act>> Article 1 of its scope of application of "investment services and investment in additional services, both inside and outside the financial instruments exchange transactions, financial futures, financial analysts and shareholders of listed companies held by a certain percentage of voting rights changes. "
2, the statutory level responsible for the overall supervision of financial markets, Germany's Federal Financial Supervisory Authority (hereinafter referred to BaFin, on May 1, 2002 by the Superintendency of Banks, Insurance Supervisory Authority, Securities Authority merger) and the formulation and promulgation of the regulations states Most of the regulatory nature of the regulations, therefore, the real development of the futures market and regulating specific direct role, or the Futures Exchange to develop trading rules.
(2) regulatory system <<Financial Market Promotion Act>>, the implementation of three monitoring: the first level is the Federal Financial Supervisory Authority, for the overall supervision of the entire financial market, the second level is the state government, state government regulatory agencies set up Exchange , but the state government regulatory agencies and exchanges between the Federal Financial Supervisory Authority no affiliation with the German state government regulation will always be seen as an important market regulation in the ring, the third level is the exchange, exchange based trading supervision departments, with full respect for the German self-regulatory futures exchanges.
EUREX EUREX, Germany and Zurich, the respective management committee may decide in their own direct exchange traded variety of transactions, without other intervention. Exchange this autonomy, to some extent contributed to the futures market rapid development.
Third, the Singapore futures market laws and regulations in Singapore to have a more developed futures market, which is more representative of the international futures markets. In Asia, Singapore, securities and futures market is second only to Japan's international financial center. Over the years, Singapore
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Government has been the financial industry as an important pillar of its economic development, and has made unremitting efforts for which full use of the advantage to strengthen the legal system, is Singapore's futures market, the key factor in the prosperity.
The early establishment of the Singapore futures market, the Government does not regulate the development of special trade practices laws and regulations. For those who have a legal relationship between futures trading occurred, mainly rely on the principles of civil law contracts to be adjusted. Singapore's first law specifically regulate the futures market promulgated in 1986 <<Exchange Act>>, the law until 2001 <<Securities and Futures Act>> take effect after the repeal enacted .1992 <<Commodity Futures Act>> mainly for other than financial derivatives, oil, gold futures outside of natural rubber futures, coffee futures and other general futures in 2001 changed its name to "Commodity Exchange Act>> Currently, regulation of financial futures and energy futures <<Securities and Futures Act>> and the regulation of general commodities futures <<Commodities Exchange Act>> Singapore futures market is the existing main legal source. In addition, the <<Law >>,<< Monetary Authority of Singapore Act >>,<< >>,<< International Enterprise Singapore Board Act Income Tax Law >>,<< Civil >>,<< >>,<< business trust Law Bank Law>> and other commercial, financial and legal, but also maintains the order of the Singapore futures markets, and investor protection plays an irreplaceable individual an important role.
(A) the establishment of a more comprehensive regulatory regime in Singapore futures market, the government has two main regulatory bodies: Monetary Authority of Singapore and the Singapore International Enterprise Development, Nan trading different varieties of their respective different functions. <<Securities Futures Act>> The first chapter provides financial futures and energy futures markets, "competent authorities" means the <<Monetary Authority of Singapore Act (cap.186)>> Monetary Authority of Singapore established its own financial futures and energy futures market a wide range of regulatory powers, in addition to approval of the futures market to establish, regulate, futures licensing, regulation of futures trading behavior, there are rules and regulations developed, such as abstract command is issued the executive power and the right of access to books, investigative powers, the right to hear a particular matter and other specific executive power. International Enterprise Singapore Board of <<the Commodity Exchange Act>> of the other commodity futures markets government authorities, have the appropriate regulatory power, but its regulatory powers, and only in the Singapore Commodity Exchange in trading futures .
(B) the establishment of a more comprehensive system of severe penalties for futures investors protection violations, strict mutual fund system and the civil liability system from different angles to the investors in the futures market to defend the <<Securities and Futures Act>> and <<the Commodity Exchange Act>> all the provisions of the Singapore futures market violations such as false trading, private hedge, price-fixing, hoarding behavior and false statements and other acts, must bear the criminal and civil liability. offenses against the investment by who can be guilty of an offense who was declared the date of 6 years and 2 years, filed a civil claim for its commitment to civil liability for damages. <<Securities and Futures Act>> requires the establishment and strict implementation of the mutual exchange fund system.
(C) the establishment of a more comprehensive, feature-rich, content specific and clear audit system in Singapore <<Securities and Futures Act>> audit system than under the auditing system of China's futures market is more specific. Interesting: it provides futures market Services are free to elected auditors for their services, only in the event of special circumstances, such as audit personnel are not required to submit audit reports, auditors believe that the futures market of financial services in poor condition, irregularities or fraud, before the Singapore Financial Board to appoint, as long as non-malicious, auditors are not subject to any representations made by the prosecution.
Fourth, the United States, Germany, Singapore, the three laws and regulations of the Chinese futures market futures legislation of inspiration (a) should focus on investor protection investor protection is the eternal theme of capital market development, market development is the magic. Futures market the same. Whether the United States or Germany, Singapore, attach great importance to investor protection, which is a key factor in their fast-growing one.
1, Germany obligations around the provision of information to start all know, "open, just and fair" principle is a fundamental principle of the futures market, according to the principles established by the information disclosure system, is very important in a futures trading system, by Almost every state legislator's attention, and lawmakers with particular emphasis on futures trading in Germany, the information disclosure system, every German capital market reforms, almost all focus on investor protection and expanded.
2004 <<Securities and Exchange Law "On the one hand for the investment services business provides for strict obligation to provide information, such as investment services enterprises should take the initiative before the end of the fiscal year, the appointment of auditors to review their provision of information, and if companies do not comply with this obligation, Therefore, customers should be compensated for losses suffered; the other hand, the Federal Financial Supervisory Authority for the provision of investment services enterprise information availability monitoring obligations, such as the Federal Financial Supervisory Authority may review the financial position of investment services business, without urgent reasons. Section 37q of the Act clearly states: "There is indeed necessary to protect the interests of investors, the Federal Ministry of Finance may issue decrees or prohibit mandatory controls on financial futures."
2, Singapore established a mutual fund system, also provides civil liability for illegal acts by the establishment of a mutual fund system in Singapore, also provides civil liability for those violations, in order to achieve the protection of investors. The <<Securities and Futures Act>> Chapter 12, Section 4 a whole section set up the contents of violations of the civil liability provisions, <<the Commodity Exchange Act>> Chapter 7 is set up a whole chapter provides the offense, and severe penalties for its emphasis on civil liability which can get a glimpse. Although China has established risk reserve system, but the legal responsibility to set unreasonable .
2007 revised <<Exchange Management Regulations>> (hereinafter referred to as <<Ordinance>>) provides the legal responsibility, basically to confiscate the illegal income , fines, warnings, demerits, suspension of business licenses and other administrative responsibilities based. only in Article 83 simply added: "violation of these regulations constitutes a crime, be held criminally responsible." And also, a word throughout the not to mention civil liability which investor protection is very unfavorable. administrative sanctions and disciplinary action can be played on other market participants to do to kill a hundred warning, provide a good market for the trading environment, but at best can only ask ground to protect investors, and investors can not make up for the loss has occurred, so potential investors, this may give them a psychological pressure, so that they are worried about the event risk event, though not on the market because of their misjudgment caused, but also will lose everything, because no one will take responsibility for his losses.
Therefore, the Chinese futures legislation should improve the legal liability system violations, the civil liability into the Futures Act, the specific contents should include: the definition of market manipulation and price behavior, loss causation, loss, burden of proof, clear that futures brokers institutional investors, property and protection of the rights of the basic requirements, should prevent misappropriation of customer deposits, while the provision of investor protection fund system, the bankrupt futures brokerage institutional investors claim the protection of the letter.
(B) listing new species mainly by the futures exchange is responsible for most of the world futures markets, such as the United States, Germany and other countries or regions are almost always responsible for the design by the Exchange, he decided to introduce new varieties traded up to take registration system , rather than the implementation of administrative licensing system for government regulatory agencies. But China <<Ordinance>> <<futures exchange management approach>> Article 88, Article 93, 13, 14, 33, 47, 105, 27, 41 China Securities Regulatory Commission shall provide for the administrative supervision of the futures market power. This shows that China's futures trading is practiced administrative system. administrative intervention, the more space for the smaller market activity, can be said that every move of the exchange completely invisible hand of government control.
There are two issues here: First, the application does not explicitly Futures Exchange, the China Securities Regulatory Commission should be made within the long period of administrative license in other words, China Securities Regulatory Commission proposed futures exchange in the treatment of new varieties to market on the application, without time limit, which may make long-term futures in waiting, administrative efficiency greatly reduced. The second is "to seek the views of relevant State Council departments," the provisions are vague, what kinds of content, which departments should seek advice , is not clear, this will affect administrative efficiency, but also practice Chinese futures market is slow introduction of new varieties of one of the main, so China is to develop the futures market, it must adapt to the international trend of development, reform the current administration futures market system, mainly for Exchange is responsible for the introduction of new varieties.
(C) the exchange of self-regulation and government regulation as important as self-management is the management of modern capital markets, the basic form. A standardized operation and orderly development of the futures market, if not self-regulation as a basis, then a strong government regulation will feel powerless.
Germany, the United States attach great importance to exchange self-regulation in Germany as early as 1892 there <<Exchange Act>>, after several revisions, in 2002 promulgated a new <<Exchange Act>>, to regulate trade The organization and activities, a clear exchange of rights and responsibilities. Board of Trade futures market self-regulation is the U.S. administration is the most direct, effective, and most important in the U.S. futures market management system, the industry self-management and exchange self-management and the CFTC's administrative control are equally important. exchange market is not only the organizers and providers, the market manager and it comes from the jurisdiction of any law, such as the United States <<Exchange Act>> first 5 futures exchanges have developed clearly defined trading rules, punish offenders and arbitration power of 10, some of the authorization from the Commodity Futures Trading Commission, and some members of the Federation of agreement from the effect of exchange. futures fairness, openness, fairness and soundness of financial futures, exchanges and clearing organizations are subject to micro-monitoring.
At present, China's government regulation is too strong, comprehensive, detailed in-depth, but the exchange self-regulation not been given due attention. Futures only in accordance with <<Ordinance "and <<futures exchange management approach>> of the mandate to develop non-compliance approach and investigate the business rules within the scope of violations, and violations and to implement disciplinary action. In fact, the futures The only play a supporting role of government regulation, and completely subject to the China Securities Regulatory Commission. this system on the one hand are in the market line, the most advantage of the exchange control regulation can not fully play the role of a waste of regulatory resources, on the other so difficult to adapt to the China Securities Regulatory Commission required the development of futures markets almost every day short of money or lack of experienced staff. Therefore, China Futures Act is necessary to strengthen the exchange of self-management to ensure the right to implement its regulatory, but also to uphold and safeguard the futures market, the centralized management of the regulatory system to ensure that government regulators in a timely manner, a strong law enforcement, to simplify the futures regulatory authority. Links to free download http://eng.hi138.com