The Logic Of Financial Judicature

With the increasing complexity of the legal system,more and more people believe that the overall position of law should shift from "legislative theory" to "interpretation theory." This highlights the importance of the issue of legal application,and the role and role of justice in modern social governance has been given more expectations.Dispute resolution and rule supply are seen as two core arguments for judicial function.Specific to the financial and commercial fields,financial and commercial transactions share the same logic as traditional civil and commercial transactions: they all make transactions through contracts,and consider factors such as fairness in matters involving financial consumer protection;On the one hand,financial and commercial transactions are more professional,innovative,cyclical,subject to regulatory policies,and reflect the characteristics of typical risk trading.The particularity of the financial and commercial fields raises a higher challenge to how the financial legal system,including financial justice,responds effectively.In addition to the dispute resolution of individual cases,financial justice is expected to assume more rules supply functions,make up for the insufficient supply of financial market rules,prevent financial risks,achieve financial justice and supervision,and guide and regulate financial transactions and innovation and other series of effects.In this context,financial justice specialization solutions are proposed,demonstrated and practiced.Generally speaking,the general understanding is that through the establishment of a special court or court,the following values can be realized: first,to improve the efficiency of trials;second,to train trial experts in specific fields to better cope with complex cases in the field;Intermediate-level people's courts,high-level people's courts,etc.,set up specialized financial trial institutions at the trial management level,which can focus on research and release of financial trial policies to achieve legal integration,and achieve the goal of intervening or guiding financial markets through judicial activism.The above three values correspond to judicial efficiency,judicial justice and judicial initiative.As far as the financial justice specialization program is concerned,these views are that specialization can solve financial and commercial dispute cases more professionally,efficiently and actively,and at the same time,it can also flexibly “output rules”,control financial risks,and regulate trading behaviors.And guide financial trading activities.From the perspective of historical investigation,from the establishment of the first financial trial court in Shanghai Pudong New Area in 2008 to the establishment of the Shanghai Financial Court in 2018,the Shanghai court has gone through a decade of financial justice specialization.The practical exploration represented by the centralized jurisdiction of financial cases reflects strong considerations of pragmatism.From the perspective of empirical analysis,the specialization of financial justice at the organizational level does not mean the inevitable improvement of the quality of financial judicial trials.Judicial efficiency,justice and initiative are influenced by many factors.Taking the overall situation and case structure of financial and commercial transactions in Shanghai as an example: In the past ten years,financial and commercial disputes in Shanghai have been dominated by financial loan contract disputes and credit card bank disputes,accounting for more than 90% of all financial disputes.The average annual appeal rate of the case does not exceed 1%.The trial of financial loan contract disputes also shows that although the degree of organizational structure of financial justice specialization is different in seven grassroots courts,the degree of specialization of financial trial organization has not shown efficacy with trials.Obvious relevance.A preliminary conclusion is that the specialization of financial justice has no substantive impact on the trial of most traditional financial and commercial disputes.Whether or not there is the organization of financial justice specialization,the overall performance of the judiciary shows a good level of trial quality.In the handling of new types of difficult financial and commercial disputes,financial justice has not been able to play the role of the rule supply under ideal conditions.For example,in the case of disputes over violations in the securities market,in the face of “hard cases”,the judiciary chose a conservative judicial strategy in order to avoid cases being changed and avoid excessive involvement in the fuzzy areas of financial legislation and supervision.In the end,no judgment was made on the civil liability of investors for violating the Securities Law's slow-moving rules.By filling the legal loopholes in financial business rules,providing refereeing rules to maintain the financial market trading order and the regulation of financial commercial transactions,this idealized description does not actually conform to the reality of China's financial justice operation.Considering the rigid constraints of the legal system,the “case-like” characteristics of financial justice,the coordination of financial justice and financial supervision,the natural characteristics of the “risk aversion” of the judiciary,and the predictive ability of the systemic influence of the case referee.Insufficient factors and other factors make it difficult for financial justice to choose a conservative and conservative judicial strategy in difficult cases.Nowadays,financial justice responds to and cooperates with financial supervision.In the judicial interpretation,the supply of judicial policy documents and the case judgment of financial and commercial disputes,there is a tendency to replace “legal logic” with “policy logic”.In particular,in the case of the representative disputes of Fujian Tiance Insurance Co.,Ltd.,financial justice has shown a strong "political logic" thinking on the legal evaluation of the effectiveness of financial transactions.It not only deviates from the position of financial commercial justice for a long time to prudently intervene in the effectiveness of contracts,but also attempts to introduce financial regulatory administrative rules into the judgment of the effectiveness of financial commercial transactions,breaking the value lock of contract legislation and consideration of constitutional arrangements,and there is no judicial position.Self-consistent.The practice of financial justice beyond its own role and participation in financial market governance has made the financial justice dispute resolution and rule supply functions both offset.The construction of China's financial justice is based on extraterritorial experience as an important basis for justification.From the perspective of financial trial competition,the article cuts through the concrete practice of the establishment of the Dubai International Financial Center and analyzes the extraterritorial experience of the financial dispute resolution mechanism.The Dubai International Financial Center Court has maintained considerable flexibility and openness in terms of specific operational mechanisms,judge selection,and case jurisdiction.The UAE is in the form of a civil law system,and even through special legislation in Dubai International Finance.The legal system of the common law system is implemented in the center.The "legal and financial" theory holds that the common law system is more conducive to the protection of investors and the implementation of contracts with a more flexible jurisprudence mechanism,which is more conducive to the development of financial markets.The rigid characteristics of the civil law system make the performance of the financial legal system not ideal.From the perspective of comparative law,how China's financial justice under the rigid legal system can adapt to the characteristics of financial commercial transactions and maintain openness and flexibility in the handling of dispute cases is indeed without challenges.The influence of legal sources on the construction of financial centers and the impact on the specific practice of financial justice specialization should be seriously taken into account in the discussion of the functional positioning and design of financial justice.The extraterritorial experience of financial justice specialization cannot constitute a sufficient justification for China's financial justice specialization.The establishment of the Shanghai Financial Court completed the expression of organizational construction and political discourse system at the macro level.However,the specialization of financial justice also faces common criticisms and challenges for the specialization of the judiciary.For example,the widely questioned interest capture problem,"deep but narrow" professional bias has impeded the development of the law,and the specialization has not shown professional improvement.The solution of these problems,as well as the smooth operation of financial justice,depends on further exploration of the trial operation mechanism in line with the specialization of financial justice.It is the key to the realization of the expected objectives of financial justice specialization,such as the improvement of the professional trial talent training mechanism in line with the needs of financial justice,the financial judicial flexibility and the legal authorization of the space exploration space.In addition,in the process of financial judicial dispute resolution and rule supply function,it is necessary to properly handle the relationship with financial supervision.The expression of the ideal picture about the functioning of the financial court cannot be beyond the logic of financial justice.Considering the characteristics of innovation,professionalism and periodicity in the financial and commercial fields,financial regulatory policies usually have exploratory characteristics,and the overall characteristics of theology,flexibility and expediency are stronger.The procedures for formulating financial regulatory policies are more flexible and the ability to correct problems is stronger.Therefore,financial justice cannot be a follower of complete pursuit of policy changes.Regardless of how the financial regulatory policies fluctuate,financial justice should maintain the judicial power based on the judicial judgment and the essential characteristics of case-review,and use the legal logic and standards to judge,in the judicial evaluation of the legal effects of financial transactions,etc,as well as maintaining consistency and consistency in positions.