在我国开展融资融券业务的合法性初探

Research on the Validity of Margin Financing and Securities Lending Business in China

融资融券在我国并非一种崭新的业务类型。在2006年证监会出台《证券公司融资融券业务试点管理办法》之前我国已经存在着融资融券交易。此前的证券信用交易大部分是以银行间债券为质押获取资金。该管理办法在融资融券担保问题上没有采用质押等典型性担保方式,而是规定了"让与担保"的方式来保障券商的结算交收风险。但是,由于证券让与担保实际上是一种流质契约,并违反了物权法定原则,从而与现有的民商事基本法律规则以及基本法理存在明显冲突,因此面临着合法性缺失问题。

Margin financing and securities lending business is not a new security business pattern in China, and it had existed before China Securities Regulatory Commission issued Measures for the Administration of Margin Financing and Securities Lending Service of Securities Firms on Trial Basis on June 2006. The preceding security credit trading mainly used inter-bank bonds as pledges to obtain financing. This regulation uses the transferring guarantee to hedge the risks of payment and settlement other than the hedge, the typical guarantee form. However, for transferring guarantee is viewed as a kind of fluidity contract and violates the principle of legal doctrine of real right, it conflicts with the current related basic civil and commercial laws. Therefore, the consequent activities in accordance with this regulation may encounter severe problems with the shortage of validity.