金融危机后欧盟“证券卖空”监管立法研究——兼评我国融券卖空法律制度

Study on EU Short Selling Regulation in the Aftermath of 2008's Financial Crisis:Refine China's Short Selling Regulatory Regime

"证券卖空"是柄"双刃剑",在完善证券价格发现机制、增加市场流动性的同时,为操纵市场等违法行为创造了空间。2008年全球金融危机爆发过程中,投机者在衍生品市场和证券市场的联手卖空操作给监管机关稳定市场的努力制造了极大困难。在此背景下欧盟对"卖空"予以全面监管立法,确立了欧洲金融市场卖空新规则。与欧盟立法相较,我国现行融券监管法律体系存在明显不足,在加快金融创新步伐的情况下,应及时修改现有卖空监管法律规范,在理念上突破证券和金融衍生品监管之间的藩篱,进一步强化对中小投资者的保护;在具体制度的构建上亦可以欧盟立法为参考。

Short selling could prompt the liquidity of securities market and benefit the securities price recovery mechanism,yet,it could also be used as the tool of market abuse activities. During 2008’s financial crisis,short selling was also accused for exaggerating the market volatility. In order to unify the regulation of financial markets,the European Union carried on the legislation towards short selling,based upon regulatory experiences of various states during the crisis. Compared with the EU legislation,there are some obvious weaknesses in China’s counterpart regime,which might undermine the safety and soundness of its financial system. In light of this,it is argued that three idea changes on short selling must be taken by Chinese legislators and regulators,namely：1）to extend the coverage of short selling regulation to financial derivatives;2）to strengthen the protection level of small-medium investors;3）to counterbalance the two pursuit of financial safety and financial efficiency. Moreover,this article also recommends some concrete refinement advices on China’s short selling regulatory regime.