| The capital market is a market system constituted by a multi-level capital market, and itsdevelopment depends on the success or failure of the legal system design and construction.The design and construction of China’s capital market legal institutions mainly depend on theoversea-introduction and the “embedded”transplantation towards the existing institutionalenvironment, and the theoretical studies of the legal institutions mainly focused on thetechnical issues of specific systems and procedures, under the circumstances of “many basicand local issues have not been clarified”, the oversea ideas, knowledge and experiences havebeen coming in a throng and showing a prosperity of “fragmentation”. However, due to thedifferences in the aspects of institutional environment, ideology, cultural traditions andcorporate structure, many legal systems came into “functional variation”after the introduction,and made a self-reinforcing in the process of institutional change, even formed a“institutional trap”that restricting the development of capital market. Not only that, over thepast decade, the whole country have launched a boom of “establishing a multi-level capitalmarket”, which the market parties have made efforts for, however, they got little success, as amatter of fact, the multi-level development of capital market is quite difficult and the inherentmultiply function of the legal institutions is weak.The above phenomena shows that the legal institutions of China’s capital market hasmany problems, such as systemic uncoordinated and integrity function alienation, as a matterof fact, it is an urgent need to determine the function of legal institutions from a properconstruct concept of capital market, and then, to determine the systematic study of the legalinstitutions. The research in this area is a special practical need which results from the“embedded” legal institutions transplantation, and there is no theory or experience that couldbe used or learned from at home and abroad. Kant said:“Whenever rational argumentationlacks idea of reliable proof, the approach of analogy can often guide us forward.” With sage’sinstructions, taking into account that the theories and methods of holistically, systematicallystudying the ecosystem structure, function and succession in ecology is relatively mature, and they have been widely used in the theory study and practice in economics, sociology,education and urban planning fields, the author initiated the idea of analogy studying thedisciplinary problems of the ought-to structure of multi-level capital market legal institutionsfrom the perspective of ecology, and explore a new path for solving the disadvantages andproblems exist in the aspects of systemic and functionality of China’s capital market legalinstitutions.Based on this consideration, this thesis expanded according to the logic sequence as“exploring the law-verifying the law-applying the law”. Its content contains four parts: thefirst part is chapter1, which discussed the analogy research methods, established a researchmodel and built the logical basis of this research; the second part includes chapter2,3,4and5, which explored the ought-to structure rules and methods of the institutional system ofmulti-level capital market legal institutions; the third part is chapter5, it takes the ought-tostructure rules of ecological analogy research and the U.S. capital market law practices asframe of reference, to conduct an all-round perspective for China’s multi-level capital marketlegal institutions, the author pointed out its eco-defects and proposed an ecologicaloptimization idea. The specific content designed as follows:Chapter1: Ecologic logical basis of multi-level capital market legal institutions. Afteranalyzing the scientificalness of analogic research methods and the life qualities of capitalmarket, this thesis proofed it is logic feasible to analogically study the multi-level capitalmarket legal institutions from an ecologic perspective. By comparing and selecting viapopulation structure and dependencies, it determined the “forest biomes” as a research modeland interpreted the concepts, meanings and boundaries of community model in order to buildan ecologic logic basis for the study of multi-level capital market legal institutions. On thisbasis, it verified the correctness of the ideas and methods of studying the multi-level capitalmarket legal institutions with a community model by taking the legal practices of the world’sfinancial regulation in recent years.Chapter2: The environment of multi-level capital market legal institutions. The legalinstitutions that undertake the environment function for capital market breeding is not only the key factor of which other legal institutions existing and functioning with, but also animportant part of the legal institutions. Ecology believes that restrictive environmental factorplays a decisive role in the survival and development of the species, and the populationdepends on the eco-width provided by the environment, whether the species can effectivelyresist the environmental risk depends on its internal steady state. The analog study found thatthe main limiting factor of the emergence and development of capital market is the tendencyof practice for benefit of the Market players, and their functional choices are property legalinstitutions; the state of capital market development and the quantity and quality of investorsare coeval, only the investor protection system that can realize the improving function ofinvestor ecological amplitude condition; the sustainable development of the capital marketsdepends on the internal stability of the companies, and this functional requirement could onlybe realized by the corporate governance system. The organic combination of the three legalinstitutions could build a multi-level capital market Legal institution environmentsuccessfully.Chapter3: the eco-architecture of multi-level capital market legal institutions. Thecapital market born in the ecological environment is naturally provided with multi-leveldevelopment trend, the deployment of legal institutions should be consistent with itsarchitectural features. The ecology theory believes that the spatial structure formed by thecommunity development will inevitably present vertical distribution, the trophic habits ofpopulation arise evolving phenomenon with the food chain extension. The analog study foundthat the ideal level distribution of capital market is a four-level pyramid state, from theproperty of law scope, the capital market legal entity relations fit with the basic qualities ofcivil law, namely, equality of subject, freedom of contract, good faith, public order and morals,do not abuse the rights, as the level rising from the bottom to the top, the legal relationshipsgradually fit the basic speciality of the economic law, such as specific nature of the rightssubjects, object universality, lopsided power configuration, the positive externality of rightexercising, protecting the body diversity, the focus of criminal regulation evolved fromguarding against fraud to guarding against systemic risk and maintaining overall security. With a targeted configuration of civil law, economic law and criminal law, we can build aneco-architecture for multi-level capital market legal institutions.Chapter4: the ecological organization of multi-level capital market legal institutions.The strong vitality of capital market roots in the independent fair competition between marketsubjects, the market structure at all levels is the result of natural selection during competitionprocesses, and match of legal institutions towards the rights and obligations of market subjectshould comply with such organizational characteristics. The analog study found thatcommunity competition principles and transfer legal institutions, predation and parasitismprinciples and investor appropriateness legal institutions, co-evolution theory and the integritylegal institutions are with a high level of corresponding nature separately, the organiccombination of the three legal institutions could build an ecological organizations formulti-level capital market legal institutions.Chapter5: The ecological succession of multi-level capital market legal institutions. Thechanges in the legal institutions in accordance with its inherent logic rule, the succession ofcapital markets legal institutions has a coupling phenomenon. The ecology believes that thedriving force of community succession comes from the superiority changes of populationcompetitive, it has a certain order and direction in the process of population succession andthe steady state of community succession is to form a climax community. The analog studyfound that the endogenous power of capital market multi-level development lies in marketinnovation, the endogenous power mechanism of the legal institutions succession for adaptingthis trend is a fair and market-oriented legislative process; the world’s capital markets willeventually achieve integration under the functioning of the endogenous power of global flowand external pressure of international competition, the exogenous dynamic mechanism andtrend of the legal institutions succession to follow this trend is internationalization.Chapter6: Ecology investigation towards the U.S. capital market legal institutions. TheU.S. capital market legal institutions fit ecologic rule mainly on the follow aspects: theproperty rights law is completely under the traditional market economy system, the ubiquitousrights protection system and sound corporate governance system, those factors has created a blessed legal institution environment; the naturally developing pyramid structure, the properlyconfigured public law and private law, a clear boundaries between government and the market;to protect the interests of investors and maintain the integrity of market are the basicguidelines of various regulatory regime; the orderly competition law regime of tradinginstitutions guaranteed the interconnection between every markets, which makes thefunctioning of the capital market to the extreme; market innovative mechanism enables thedevelopment of the capital market to obtain first-mover advantage, and the excellent positionin the international competition strengthened the impact towards the future global financiallaw. The study shows that it is correct to analogically research ought-to structure ideas andmethods of capital market legal institutions from the perspective of ecology, and the U.S.experience is worth learning from.Chapter7: Ecological defects and its optimization of China’s multi-level capital marketlegal institutions. From the perspective of the environment, structure, organization andsuccession of the four latitude, the author discovered the ecologic defect of China’s capitalmarket legal institutions as follows: in order to adapt the environment arising from theprevious system, the “embedded” transplanted legal institutions emerged feature-distorting;the local sub-optimal equilibrium formed by the benefit gambling lead to a single-level legalinstitutions; the sidedness positioning of market function leads to a lacking of investorprotecting legal institutions; the improper relationship between market freedom andadministrative regulation resulted in the lack of civil relief and integrity legal institutionssupplies; the insufficiency of procedural justice during the legal institution changes resulted inthe lack of market innovation, and the imprison consciousness lead to the inadequate ofexternal traction and guiding factor during the legal institution succession. In the future, thepriorities of China’s ecological optimization of capital market legal institutions include: toimproved property legal institutions with a mix economic system; make investor protectionrun through the legal institutions; to reshape the legal relationship between government andthe market with contract guidelines, to reform the regulatory law system by focusing onmaintaining the integrity; to enhance the legal institutions succession power with innovating market-based mechanisms, to enhanced the external power mechanism of legal institutionsuccession with an international orientation, and enhance the international competitiveness ofChina’s multi-level capital market. |
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