我国融资融券担保性质的法理探析

Analysis of Legal Issues of Guarantee in Financing and Security Lending

融资融券是一种信用交易,需要债务人为所融资金和证券向债权人提供一定的担保,以维护债权人的利益。对于融资融券担保,我国立法采纳的信托构造与法学理论和现有的法律制度相冲突,难以自圆其说。国内学者对此多有质疑,但未形成统一认识,并对融资融券担保的法律性质分别提出了"让与担保"、"最高额质押"及"账户质押"等学说。因此,对信托构造以及理论界的各种说法进行合理性及合法性探析,正确定位融资融券担保的法律性质至关重要。

Financing and security lending is a kind of margin trading. The debtor should guarantee for the fund and securi- ties which he had financed. The trust mechanism that China＇ s legislation adopts on the issues of financing and security lending conflicts with the existing legal theory and system, leading to the paradox of its own is more difficult to justify. Most of the do- mestic scholar have queried it, but have not formed the unification understanding. At the same time, they propose ＂releasing pledge＂, ＂the highest amount to impawn＂, ＂the account impawns＂ and other theories separately. So, it is very important to analyze the legality and rationality of trust and other theories that the scholar have put forward, and then locate the legal na- ture of guarantee in financing and security lending.