| From the admission in 2010, margin trading and short selling has reached a trillion scales in the securities market in 2015. Although it brings in the leveraged transaction, risks and problems in its business operation are gradually revealed. In the face of its rapid development and the defects revealed in its business operation, it is necessary to strengthen and perfect the legal regulations. From the perspective of the basic theory of margin trading and short selling, this paper analyzes the revealed problems and risks, and draws lessons from the developed securities markets, and puts forward the corresponding countermeasures and suggestions to solve legal problems.This paper starts with the basic theory which includes the concepts and the legal relationships of margin trading and short selling. Based on the analysis of the new legal norms revised by the China’s Securities Regulatory Commission and the Shanghai and Shenzhen Stock Exchange, the legal supervision system and legal norms are introduced. According to the problems existing in the margin trading and short selling, this paper discusses three issues. Firstly, the issue of guarantee legal mechanism, on the one hand, we can introduce the declaration of trust to solve the plight of the legal relationship of trust framework; on the other hand, the legislation of transfer guaranty can solve the problem of guarantee qualitative in the business operation of margin trading and short selling. Secondly, the asset-backed securitization of margin trading and short selling, its special purpose vehicle (SPV) regulation and credit assessment should be given sufficient attention. Finally, facing the problem of the coordination between the administrative supervision and the industry self-discipline supervision as well as the legal liability system in the margin trading and short selling business, and drawing lessons from the coordination experience of the administrative regulation and the self-discipline supervision in the developed securities market, on the one hand, we strengthen the administrative supervision and industry self-discipline supervision coordination interaction; on the other hand, we should perfect the system of civil liability, administrative liability and criminal liability. |
