Research On The Legal Attribute Of Futures Trading Margin

Futures trading implements the margin system,that is,in futures trading,any trader must pay a certain proportion of funds(or securities or other property)according to the price of the futures contract he purchases for settlement and performance guarantee.As the basic system of the futures market,the specific collection form,payment proportion and operation mechanism of the margin system,such as no debt and net settlement system on the same day,forced liquidation system and position limit system,have been clearly recognized by the law.However,the legal attribute of margin,the basis and premise of margin system,is difficult to be determined in theory and practice.There are many disputes about the legal attribute of futures trading margin.Previous scholars have demonstrated the legal attribute of futures trading margin from the idea of traditional civil and commercial law,and combined the established theoretical framework of traditional civil and commercial law with futures trading guarantee,in order to rationalize the identification of the nature of margin.The existing theories include "property ownership theory","money pledge theory","trust guarantee theory","transfer guarantee theory" and "special guarantee theory".Each theory seems reasonable and can solve some practical and urgent problems in practice,but they all fall into the "rampant" dilemma of trying to solve all modern financial transactions with traditional civil and commercial law.In fact,the essence of modern financial transactions is not ordinary paid exchange to obtain tangible or intangible property.On the contrary,the core and essence of modern financial transactions is risk,which is based on credit transactions and aims to pursue a reasonable risk premium below the risk limit that needs to be avoided.Therefore,when judging the legal attribute of futures trading margin,we should jump out of the legal framework of traditional civil and commercial law.We should take the essence and core of futures trading as the premise,and look at the legal attribute of futures trading margin from the perspective of identifying and preventing risks.Based on the above,this paper finds another way to discuss the legal attribute of futures trading margin from a new perspective from the perspective of prudential supervision.Specifically,the core element of futures trading margin in Futures Law is not to create a new guarantee system or a new relationship of civil rights and obligations outside the civil code.In essence,futures trading margin is a prudential supervision mechanism,which constitutes an important part of the infrastructure of the financial market.It is prudent,preventive and mandatory.The legal relationship formed by this mechanism is actually the relationship of power and obligation in public law,which just puts on the "coat" of traditional civil and commercial law.By putting forward and demonstrating this new point of view,this paper will still make it clear that in modern financial transactions,financial risks can not be fully identified only by the market subject itself.This means that the financial market cannot fundamentally prevent and avoid risks through the autonomy of market subjects.Therefore,in the face of the setting of the specific system of financial transactions,we can not unilaterally and arbitrarily understand it as the superficial relationship of civil rights and responsibilities,but to penetrate and analyze the potential regulatory objectives behind the system to prevent and resolve financial risks.The first chapter of this paper is an overview of futures trading margin and prudential supervision measures,including three aspects.First,it clearly defines the basic rules of futures trading margin from the aspects of definition,operation mechanism and operation process.Second,it expounds the specific connotation and extension of prudential supervision measures,Third,analyze the internal relationship between futures trading margin and prudential supervision measures.The second chapter mainly analyzes the legal attribute of futures trading margin in regulatory law.This paper focuses on the concept of "financial safety net" in the futures market,that is,the futures exchange,the central counterparty and the futures trading margin system jointly build the infrastructure for preventing risks in the futures market.From the perspective of market infrastructure with prudential supervision as the core,combined with the arrangement of hierarchical settlement system of futures trading,margin has the nature of macro and micro prudential supervision in primary settlement and secondary settlement respectively.Accordingly,the third chapter mainly analyzes the legal attribute of futures trading margin in civil and commercial law.By launching the account opening contract between futures companies and traders and the settlement agreement between futures companies and futures exchanges,this paper deeply analyzes the "guarantee coat" of traditional civil and commercial law autonomy of futures trading margin in different forms.Finally,the third chapter will still make it clear that the margin clause in the futures law belongs to the mandatory norm of effectiveness in the sense of civil law,and the guarantee arrangement of margin under the framework of civil and commercial law actually excludes the party’s autonomy.In other words,the agreement on margin between futures traders,futures companies and futures exchanges must be bound by financial security and financial stability,that is,it must be bound by the mandatory provisions of the law(margin provisions).This reflects the original prudential supervision nature of futures trading margin.Therefore,the legal attribute of futures trading margin has been established since then.