Financial Innovation Of The Private Law Of Environmental Studies

Based on theories of law and finance, this dissertation discusses the private law environment for financial innovation. Choosing the legislative perfection of special financial norms as the main line, it analyses the absence of private law against the backdrop of financial innovation, and proposes ecologicalization as the goal of development by historical analysis, comparative study, judicial interpretation, economic analysis and empirical study.The Introduction argues about the significance of the topic, explains the key concepts closely related to the private law environment for financial innovation, reviews studies in China and other countries, thereby establishing the niche for this dissertation and its research methodology.Chapter One is a macroscopic examination of the connection between financial innovation and private law environment. First the background and motivation for financial innovation is presented with a summary of its historical development and future trends. Then the impact of judicial environment on financial innovation is discussed by a comparison of the effects of the two law systems. Then the transformations of the characteristic, subject, object, content in the legal relationship are studied under the background of financial innovation. In addition, the inadequacy of general private law is analyzed when regulating the legal relationship of financial innovation. Finally the thesis of the dissertation is introduced: ecologicalization of the law environment for financial innovation is gradually realized with securitization, off-balance-sheet, and globalization.Chapter Two focuses on asset securitization. The research of structured finance is made in order to show that the key point of securitization structure is risk remoteness, which required to be secured by both aspects of special subject system and transaction system. In argues of subject system, a comparison of corporation, limited liability partnership and trust for special purpose vehicle is made, with each advantages and disadvantages, while the feasibility of assigning future credit and the special regulation of "true sale" are mainly discussed in argues of transaction system. Consequently, this chapter will make a comment on the Chinese general private legal system relating to securitization, and propose its special legislation.The subject of Chapter Three is off-balance-sheet business. It divides off-balance-sheet businesses into credit-risk ones and market-risk ones, and establishes contract system as the common basis of all off-balance-sheet businesses. First, this chapter analyzes the legal effects of subordinated debt and financial derivatives, which selected as the typical representative of two kinds of off-balance-sheet businesses, in Chinese general private legal system. Then the main performance way of off-balance-sheet businesses, net settlement, is discussed. Finally, it describes the breakthroughs of Chinese debt law, cooperation law and bankruptcy law, so that the special legal norms for off-balance-sheet businesses are proposed.Chapter Four takes a global perspective, which indicates from the economic phenomenon of financial globalization to the legal phenomenon of institutional globalization. Centering on financial trust, this chapter analyzes the dilemma of transplanting the property system from common law to civil law countries for sustaining financial innovation. By comparing the legal idea of property law in common law countries with that in China, this chapter seeks the way to reconstruct Chinese property law system.Chapter Five argues the relationship between the financial crisis and the legal system as a response to the recent subprime mortgage crisis. It reviews the reposition of the relationship between public law and private law against the backdrop of financial innovation by studying the legal measures that deal with the crisis. It proves financial crisis is always triggered by absence of financial credit, which needs not only amendment of general private law but also special legislation concerning financial credit. Then follows a discussion of the inapplicability of general legal liability system to fictitious economy in financial innovation, and proposes the primary suggestion of perfecting the special liability system of fictitious economy.In the context of financial innovation, Chapter Six studies the ways for special financial norms to be merged or supplemented into general private law system, and looks at the prospects for the reforms of subject, object, content of legal relationships and source of law, depicting an ideal ecologicalized vision of private law environment for financial innovation.