金融司法与监管的协同:穿透式审判中的挑战与回应

Synergy between Financial Judicature and Regulation:Challenges and Responses in Penetrating Trial

金融司法与监管的有效协同是实现金融风险治理的关键问题。目前金融司法穿透式审判中,两者的协同面临着传统民商法规则适用困境、以契约自由为基础的交易规则张力不足、金融监管规则介入司法范围存在不确定性等挑战。实质法治观、政府与市场关系法治理论及法律不完备理论为金融监管规则介入司法奠定了法理基础。在金融司法穿透式审判中,应明确介入金融司法的金融监管规则的具体类型,以货币秩序稳定、审慎监管、金融消费者与投资者利益保护等标准认定金融领域公序良俗,建立金融司法穿透式审判“五步法”模式,规范监管规章及规范性文件适用的程序控制,并加强金融审判专业化建设。

The effective coordination between financial justice and financial supervision is the key issue to realize financial risk management.In the current financial judicial penetrative trial,the collaboration between the two faces challenges such as the legal application dilemma of traditional civil and commercial law rules,the lack of tension of transaction rules based on contract freedom,and the uncertainty of the scope of financial regulatory rules to intervene in justice.The coordination between supervision and justice in the financial judicial penetrating trial should be based on the balance between judicial power and executive power under the substantive rule of law,the rule of law theory of the relationship between government and market,and the theory of legal incompleteness.In the process of financial judicial penetrative trial,we should adhere to the principle of moderation and necessity and carry out systematic system response.Firstly,we should reasonably define the specific types of regulatory rules involved in financial justice,and clarify the application logic of different types of regulatory rules such as regulatory rules and other regulatory normative documents.The intervention of financial regulatory rules in financial justice should be provided as an exception to Article 153,paragraph 1,of the Civil Code,and it needs to be confirmed by means of legal supplements,otherwise the regulatory regulations can only be used as a supplementary basis for the value of Article 153,paragraph 2.At the same time,from the perspective of organic law,the subject of the formulation of regulatory documents that can be applied to the financial judicial penetration trial includes the Party apparatus,the State Council,the People's Bank of China,the financial regulatory department of the State Council,the deposit insurance fund management agency,and the regulatory documents jointly issued by multiple Ministries and commissions of the State Council.Secondly,public order and good customs have different forms of expression in different social scenes.In the financial judicial penetrating trial,the regulatory standards in the financial law are used to identify public order and good customs in the financial field,including monetary order stability standards,prudential supervision standards,and financial consumer and investor interest protection standards.Thirdly,starting from the basic requirements of legal reasoning and the particularity of financial judicial penetrating trial,explore the establishment of a"five-step"mode of financial judicial penetrating trial.It includes identifying the cases applicable to penetrating trial,standardizing the procedural control applicable to regulatory rules and normative documents,sorting out the facts of legal relations and discovering the nature of case transactions,strengthening the case penetrating reasoning and professional identification of public order and good customs in the financial field,and searching and comparing the same case types applicable to penetrating trial.Fourth,clarify the applicable rules of different legal norms,the Civil Code article 153paragraph 1 and paragraph 2 of the application of the premise is different,the application of paragraph 2needs to be combined with the specific scenario of public order and good customs for detailed explanation,the application of paragraph 2 usually needs to be combined with the financial regulatory rules for value judgment.Finally,by strengthening the construction of financial courts,strengthening the construction and personnel training of financial judicial teams,and the transformation and application of financial judicial achievements,we should strengthen the professional construction of financial trials.