摘要
金融衍生交易特别是场外衍生交易规则与传统民商法之间的冲突是大陆法系国家普遍存在的问题。衍生工具作为一种新的合同类型,与传统合同的显著区别在于"当前订约、未来履行",从中派生出特殊的履约风险、缔约风险等一系列新问题。对赌、显失公平等法律争议正是基于衍生合约本身的特性而产生;而通常被称为"衍生交易规则"的一整套制度实际上是市场自发创设的防范履约风险的安排。在此,场外衍生交易与场内衍生交易之间没有本质区别,英美法系与大陆法系需要应对同样的问题。通过还原衍生交易规则背后的法律逻辑,可以构筑一个以"合同"为中心的衍生交易法律问题的分析框架,容纳从合同效力、履行、缔约到信息披露、监管等一系列问题。以合同为主要处理对象的民商法应扩张自身的体系以容纳实践中产生的新合同类型,从而为整个金融衍生交易法律规则体系提供坚实的基础。
Financial derivatives, especially OTC derivatives have posted great challenge to civil law counties, with the most notable example being the conflict between traditional civil and commercial law ideology and the derivative transaction customs represented by ISDA master agreement. The current theory attributes the conflict to such factors as common law versus civil law, exchange derivates versus OTC derivatives, and the real economy versus virtual economy. That explanation has ignored the common use of derivatives as the risk management tools for businesses in both common law and civil law countries, nor does it take into account the fact that derivatives, as financial contracts, are based on such legal rules as contract law, security law and so on. The authors of this paper try to explain derivatives with legal logic rather than market language. Starting from the essential characteristics of the derivative contract, i. e. , ＂contracting right now but performing in the future＂, the paper explores the specific risk inherent in the contract and illuminates the response from the market to control the risk. The controversial issues such as gambling contract may be attributed to the future performance element of derivatives. The transaction customs represented by ISDA agreement and the Exchange rules reflect the effort of market participant, given the absence of legal rules, to post disincentive on the parties for the breach of contract. Therefore, there is no difference between the OTC and exchange derivative, or between common law and civil law. The paper then builds a framework to analyze the legal issues around derivatives from contracting, performance to information disclosure and regulation. It ends with a call for the traditional civil and commercial law to accept the new kind of contract in order to provide a robust legal base for derivative transaction.
出处
《法学研究》
CSSCI
北大核心
2012年第1期58-76,共19页
Chinese Journal of Law
基金
北京市哲学社会科学"十一五"规划项目"美国次贷危机成因的政策法律分析及其对我国的启示"(09BaFX050)的资助
关键词
衍生交易
衍生交易规则
民商法
合同
derivative, derivative transaction custom, civil and commercial law, contract
