析我国融资融券交易风险防范法律制度的不足与完善

On the Defects and Improvement Concerning the Risk Prevention Legal Systems in Margin Trading

金融立法并非纯规则逻辑的分析与考证,它要求立法者必须从金融业务本身的风险分析出发,并结合一国特殊的情势创制相应的风险防控法律规则。只有如此,才能在兼顾法律规范功能的基础上确保法律效果功能的如愿释放。虽然我国融资融券法律平台的构建在形式上遵循了"真理是时间的产物,而非权威产物"的真知,但是在批判视角下所裸露的不足说明立法还是相当稚嫩的。从风险及中国特色的社会环境等层面来思考法律的欠缺不仅是必须的,而且也是可行的。

Financial legislation is not pure logic analysis and textual criticism, which requires lawmakers create corre- sponding risk prevention laws and rules in combination with the special situation of a state from the risk analysis of financial business itself, and combined with a special situation and the corresponding risk creating law rules. Only in this way can ensure the function of legal effect be released on the basis of taking into consideration of the function of legal norms. Although the platform establishment for margin trading follows that ＂the truth is a product of time, rather than the product of authority＂ in form, however, from the critical perspective, the insufficient explanation for the legislation shows that the present legislation is still quite young. From the risk and the social environment of Chinese characteristics to consider the deficiency of law is not only necessary, but also feasible.