Research On Safe Harbor Rules Of Financial Derivatives From The Perspective Of Bankruptcy Law

The large increase in bankruptcy cases is one of the current economic and social development trends.Bankruptcy procedures are advanced in an efficient and orderly manner,legally protecting the legitimate rights and interests of creditors and debtors,and maintaining economic scale is the proper meaning of the bankruptcy law.However,how to resolve the issue of financial derivatives transactions in the bankruptcy procedure,especially how to appropriately and reasonably handle the conflicts between the financial derivatives transaction system and the rules of the bankruptcy law,is still blank in violation of the legislation.“Financial Derivatives Transaction Master Agreement(2009 Edition)”standardization agreement,analyze the conflict between the content of the agreement and the rules of the bankruptcy law,and reflect on the adoption of the US safe harbor rules and the disputes caused by the rules,in order to gradually establish financial derivatives transactions in bankruptcy The safe harbor rules in the law provide useful suggestions.The introduction part briefly introduces the research background and the main research issues of this article,and through the introduction of the literature involved in the related issues,through historical analysis,comparative analysis and case analysis,the research structure and innovations and deficiencies of this article are put forward.The first part focuses on the conflict between the financial derivatives trading system and the rules of the bankruptcy law,including the right of the observant party to terminate the financial derivatives trading agreement early after one party to the financial derivatives transaction enters the bankruptcy proceedings and the failure of the bankruptcy administrator to perform both parties Complete the conflict of "selective performance" of the contract;the observant party can obtain the conflict between the right of debt settlement and the right of bankruptcy set-off and cancellation through net settlement.In addition,it is also proposed that the resolution of the above conflicts should be within the scope of the bankruptcy law and the rules of the non-bankruptcy law should be respected appropriately and reasonably.The second part introduces the U.S.method of resolving the above conflicts-safe harbor rules,that is,exempting the observant party from complying with the bankruptcy law’s automatic freezing system of bankruptcy assets,exempting from complying with a series of core systems such as bankruptcy offset,biased and fraudulent transfers,etc.,The legal rules that give it special treatment,and through the introduction of the Lehman Brothers bankruptcy case,explore the rationality of the rules.The third part focuses on the questioning of the safe harbor rules,including the application of the safe harbor rules by the observant party,resulting in detriment of the property of the defaulting party in the derivatives transaction;inducing improper speculation by the counterparty and developing financial derivatives Reduce risk control requirements during transactions;and question the types of transactions and transaction subjects regulated by the safe harbor that are too broad.In response to the above doubts,we will reflect on the rules of my country’s bankruptcy law.On the basis of the above analysis and summary,the fourth part provides preliminary legislative suggestions for the establishment of safe harbor rules in China,including insisting on the joint role of administrative and judicial functions,insisting on the stability of the financial market and the value of the bankruptcy law,and insisting on respecting the laws and integration of the financial market The principle of professional judgment;in terms of regulatory content,financial derivatives should be exempted from the application of automatic termination of bankruptcy assets and bankruptcy offset provisions;in terms of regulatory types,in bankruptcy liquidation procedures and bankruptcy reorganization procedures,and financial derivatives undertake speculation Safe harbor rules should be established when functioning,and the bankruptcy law should be strictly applied when bankruptcy reorganization procedures and financial derivatives assume the function of hedging;the regulatory body should be strictly limited to financial institutions with a certain scale.Finally,a preliminary conception of our country’s legislative style and model.