论我国金融法适应性的实现路径

The Chinese Path to the Adaptability of Financial Law

高适应性的法律能快速回应市场参与者和司法裁判者的法律规则需求,更好地应对金融创新、防范金融风险,促进金融市场发展与深化。普通法系国家更为接受判例法,法律适应性更高,金融发展也较繁荣。判例法的高适应性依赖其法院独立行使审判权。我国未将判例作为正式法源,且司法存在地方化与行政化的特征,难以通过引入判例法实现金融法的高适应性,需另寻替代路径。依据法律的不完备理论,法院与金融监管部门都可发展金融法。金融监管部门更具主动性、专业性,其制定的规章、规范性文件能直接约束金融市场的参与者,且由金融监管部门主导发展金融法更加契合我国的金融法制环境。为更好地实现适应性,抽象理念层面,金融监管部门在制定规章、规范性文件时应更注重金融市场参与者的私法规则诉求,回应金融创新;具体方式层面,立法机关的监督应从实体性控制为主转向程序性控制为主,监管部门应强化自身的规则制定能力,并加强与法院在规则制定领域的合作。

A highly adaptable law can respond to the needs of market participants and judges for legal rules efficiently,which could help to accommodate to the need for financial innovation,prevent financial risks,and promote the development and deepening of the financial market.The research of Law and Finance reveals that common law countries,with strong foundation of case-law tradition,make their laws more adaptable,which could also explain the reasons for successfully developing their highly competitive financial markets.Judicial independence and the government's non-interference in judiciary are the critical safeguard for case law to fulfill its adaptive role.China does not regard case law as a formal source of law,and the judiciary has the characteristics of localization and administration.It is difficult to improve the adaptability of financial law by simply introducing case law.Based on the Incomplete Law Theory,both the judiciary and financial regulators can improve financial rules or regulations.Thus,there are two alternative approaches.Financial regulators are more proactive and professional since the regulations and normative documents they formulate can restrict financial market participants directly.And the financial regulators leading the development of financial law is more suitable for China's financial legal environment.At the conceptual level,for implementing the adaptability of financial law effectively,financial regulators should pay more attention to responding to financial innovation and the demands of private law rules of financial market participants when formulating financial legislation and governmental regulations.At the rule implementation level,the focus of legislator's supervision should shift from substantive control to procedural control,while regulators should improve their rule-making ability and strengthen the cooperation with the judiciary in the field of financial law-making.