The Study On Legal System About Guarantee Of Margin Trading

Begin with the 17 th century in Dutch, margin trading play an important role in increasing vitality of the securities market, expanding scale of the securities trading, meeting needs of enterprise to raise money and investors to investment. Because of highly speculation, it is necessary to exercise strict control over the expansion of the credit transactions. As the core of margin trading, guarantee system of margin trading refrain speculation and ensure compensation of the creditor’s rights. So it is of great significance to the order and safety of the securities market.Pilot project of the margin trading in China officially launched on March 31, 2010. After five years development, the scale of margin trading has developing from six million to more than one trillion yuan. Margin trading flourish in the securities market in China and at the same time, there is no agreement on qualitative analysis of margin guarantee in the theoretic and practical filed. Unclear margin trading guarantee’s nature result in conflicts with other legal system in our country and hinder the further development of margin trading. Against the dispute of nature of the margin guarantee, this article tries to comb various theories and explore the essence of the margin guarantee. And by the American experience, explore the second road to solve the problem.The article is made up of three parts including introduction, text and peroration. Introduction includes issues raised, backgrounds and the significances of the research, literature review, the methods, structure, innovation and inadequate of the article. Introduction brings out the essentials and provides guidance for the full text. The text is divided into three chapters.Chapter one: the source of the problem—qualitative dilemma of our current margin trading guarantee mechanism. First of all, sort out and analyze the relevant legal standards of margin trading. Secondly, analyze the impact of securities paperless to securities rights. Thus recognize that the setting of account plays a decisive role in property’s ownership under the name of the account. Then,describes the account settings and operational procedures of margin guarantee mechanism in our country. Finally, the existence of qualitative dilemma of margin trading guarantee in our country leads to contradictions of trust and guarantee legal system.Chapter two: the analysis of the problem—qualitative analysis of the margin trading guarantees mechanism. There are two paths to solve the qualitative problem of margin guarantee mechanism. The first is approach of type, seeking to fit a certain guarantee mechanism to margin guarantee mechanism. Followed by the United States functional doctrine inspired ideas. The United States also had suffered the qualitative problem to new type guarantee. In response, the United States issued “Uniform Commercial Code” which is deeply influenced by the Legal Realism. It’s functional method to unify and simplify the form and rules of the Movable Property Guarantee, with respect for the party autonomy and simplify public system. The practice that light form and weight essence subverts the traditional guarantee completely and meets the requirements of modern market transaction, which focus on efficiency and safety. It has a significant impact to other countries and regions’ Movable Property Guarantee system and also arise enlightenment to our country’s qualitative questions of margin trading guarantee.Chapter three: he solution of the problem—the advice to solve the qualitative dilemma of margin trading guarantee in our country. Margin guarantee mechanism is a spontaneous product of the market. The author thinks it should start in system design itself to solve the qualitative dilemma of our country margin guarantee mechanism. In the analysis of the traditional security interest system, the author proposed the need for the existence of a security interest without transfer of possession. Alienation guarantee has the same function with chattel mortgage. The author disagrees to intruding trust mechanism to margin guarantee mechanism by combing margin trading legal relationship. Finally, margin guarantee mechanism is so special and different from the general security interests. By analysis its’ peculiarity,the author approval that our margin guarantee should be characterized as a special type of chattel mortgage. By the end of the article, the author consider whether our country’s margin guarantee mechanism go typed or functional road.