摘要
在《证券法》规定了允许证券公司开展融资融券业务后,国务院行政法规及证监会部委规章规定了融资融券及转融通业务的保证金制度,但是该保证金的法理基础如何并不清晰。学者提出的信托让与担保制度,从台湾制度考察其仅适用于不动产,况且其在我国现行法律体制下,存在诸多不融合的地方,而以源于英美法系的"信托"为基础制定的《信托法》可为融资融券及转融通业务保证金提供较顺畅的法理依据,该法理依据的确定将推动融资融券及转融通业务保证金的创新使用。
After securities firms were allowed to operate margin trading and short selling by the Securities Law of the People＇s Republic of China, the administrative regulation promulgated by the State Council and the regulations published by the China Securities Regulatory Commission have set rules for margin in China＇s margin trading and short selling, as well as margin financing loan business. However, the juristic basis of the margin is still unclear. Some scholars suggested that the system of transferring guarantee through trust should be applicable in this context, but if we take a close look at the case of Taiwan, we can find that it is only applicable to real estate. Moreover, such system is not compatible with the framework of the law in China's Mainland. On the other hand, the Trust Law, which was enacted based on trust rules from Common Law, may be used as the juristic basis for the margin hereof. The recognition of this juristic basis will facilitate the creative use of the aforesaid margin.
出处
《证券市场导报》
CSSCI
北大核心
2014年第2期51-55,共5页
Securities Market Herald
关键词
融资融券
转融通
保证金
信托
让与担保
margin trading and short selling, margin financing loan, margin
trust, transferring guarantee
