Analysis Of The Series Case About The Over-the-counter Funding Contract Disputes

In 2015,China’s securities market experienced huge fluctuations.The stock market experienced a sharp rise and fall in the short term,and even the spectacle of thousands of stocks fell,causing serious losses to investors.In this stock market disaster,the over-the-counter funding has experienced a brutal growth due to the lack of supervision of the China Securities Regulatory Commission,which has brought huge risks.Nowadays,due to the high leverage characteristics of over-the-counter funding and the regulations on margin closeout,and the lack of relevant laws and regulations on the margin financing business,investors have generated a large number of disputes in the process of margin financing business.The focus of the disputes in this type of case is relatively concentrated,but the courts’ judgments are very different.In this context,it is necessary to select relevant typical cases for analysis and summary.Through the comparative study of the case,this paper can find that the focus of the disputes in such cases is mainly concentrated on the following aspects: the nature and effectiveness of the funding contract,whether the setting of the guarantee clause in the funding contract is reasonable,and the distribution of the loss liability after the margin closeout of the funding company.After analyzing the corresponding laws and regulations of our country and various theories of the academic circles,the conclusions are as follows: In the determination of the validity of the fund ing contract,it is concluded that the funding contract is still valid despite the legal management provisions.On the determination of the nature of the fund-raising contract,the terms of the fund-raising contract are analyzed,and compared with the entrusted wealth management contract and the private lending contract,the conclusion that the fund-raising contract should be recognized as an off-exchange stock financing contract is obtained.When confirming the validity of the guarantee clause,it is necessary to determine the validity of whether the subject and the fixed rate of return of the guarantee clause comply with the bank regulations.When judging the validity of the guarantee clause,the court should also examine whether it violates the mandatory provisions of the law and the basic principles of the civil law.At the same time,it should also consider whether the setting of the clause is the true meaning of the two parties,and comprehensively consider the various aspects to conclude that the guarantee clause is valid.In the distribution of the loss liability after the margin closeout of the funding companies,the “Guidelines for the Judgment of the Cases of Over-the-counter Funding Contract Disputes” issued by the Shenzhen Intermediate People’s Court shall be used as the standard to identify the faults of the funder and the financier in the margin closeout.And then determine the responsibilities of both parties by the size of the fault of both parties.The existence of the over-the-counter funding is inevitable.The CSRC’s repeated ban on over-the-counter funding has not been effective.Therefore,the CSRC is not going to completely prohibit over-the-counter funding,but to strengthen supervision and allow over-the-counter funding,so the business could develop in an orderly manner under a sound regulatory system.