| Commodity trading market can be divided into commodity futures trading market and commodity spot trading market.Commodity spot trading market is a place to provide organization,service and infrastructure for commodity trading,which plays an important role in promoting commodity circulation and satisfying enterprise production and business activities.However,in the development of commodity spot trading market,due to some market operators’ misunderstanding of commodity spot trading and improper introduction of futures trading mechanism,the phenomenon of disguised futures trading appears frequently in commodity spot trading.The main purpose of spot trading of bulk commodities is to promote the trading of physical commodities,and the same purpose of traders is to transfer and acquire the ownership of commodities.However,due to improper adoption of futures trading mechanism in the commodity spot trading market,such as standardized contract trading,hedging trading and T + 0 trading in the form of centralized trading,the bulk commodity spot trading is separated from the physical commodity trading and evolved into disguised futures trading.Because the disguised futures transaction evades the market supervision,it is easy to cause greater market risk,infringe the interests of investors and disturb the market order.At present,there are still some deficiencies in the legal regulation of the disguised futures trading in China,which results in the fact that the disguised futures trading behavior is prohibited repeatedly.In order to promote the healthy,stable and orderly development of commodity spot market,it is of great significance to analyze the behavior of disguised futures and improve the legal regulation of disguised futures.In addition to the introduction and conclusion,this paper consists of five parts:The first part mainly introduces the definition of disguised futures.Disguised futures trading takes place in the spot trading market.Analysis of futures trading is a prerequisite for defining disguised futures trading.This part first sorts out the legal definition of futures trading,and then analyzes the trading rules of the four major futures exchanges in China to analyze futures.Analyze the legal characteristics of transactions and discuss the legal relationship between futures trading entities.Secondly,this part discusses the legal characteristics of disguised futures trading and the legal relationship involving the subject through the "First Case of Disguised Futures Trading".The second part takes the necessity of legal regulation of disguised futures trading as the theme.By discussing the negative effects of disguised futures exchanges,it is concluded that the legal regulation of disguised futures trading should be strengthened.Disguised futures trading not only inherits the inherent risks of futures trading,but also triggers new risks because it evades supervision.Therefore,this part firstly explains the inherent risks of futures trading,and secondly,based on the disguised futures trading events in practice,the disguised futures trading disturbs the market order,violates the interests of investors,and is not conducive to the development of the market economy.The third part mainly expounds the identification of disguised futures trading.First of all,this part analyzes the difficulty of identifying disguised futures trading.The difficulty lies in how to recognize disguised futures trading through external objective and visual factors.Furthermore,it is proposed that the identification of disguised futures trading should follow the principles of risk regulation,market innovation,substance over form,abstraction and specificity.Finally,the factors for identifying the disguised futures trading should be determined by whether the transaction is divorced from physical commodity trading and supplemented by the main body of the transaction,market supporting measures and contract content.The fourth part reviews and analyzes the status quo of the legal regulation of China’s commodity futures trading in disguised form from the perspectives of legislation,law enforcement and justice.Regarding the legal regulation of commodities in disguised futures trading,in terms of legislation,through analysis of the current legislative text,China ’s current legislation has not clearly regulated disguised futures trading,and there is a lack of unified standards for the recognition of disguised futures trading;Insufficient supply of legislation makes law enforcement unreliable.At the same time,due to the lack of a unified regulatory authority,the supervision of disguised futures trading is insufficient.In the judicial area,through the analysis of the judgment documents on disguised futures trading by various courts,various courts have different cases of disguised futures trading Attitudes,some courts regard the basis of the SFC’s determination as a pre-procedure for litigation,and directly dismiss the prosecution without the SFC’s legal determination,and local courts have different standards for determining disguised futures trading.The fifth part puts forward feasible suggestions to improve the legal regulation of disguised futures trading.In view of the problems existing in practice,the regulation ofdisguised futures trading behavior should clarify the unified recognition standard of disguised futures trading,establish a cross market supervision system,improve the connection between administrative supervision and criminal justice,and improve the judicial relief way to protect the interests of investors. |
