A Research On Credit Guarantee System For Securities Trading

China's guarantee system of securities credit trading worked out recently has been successfully integrated into international grantee system owing to the creative introduction of cession guarantee system. However, this integration has brought cession guarantee system into conflict with China's law system. Meanwhile, the existing systems have some theoretical predicament and system deficiencies. Therefore this thesis, by analyzing cession's predicaments in China's property law, classifies the exact role of cession in China's law system. Through the research of cession guarantee system's legal constitution, the paper clears the theoretical obstacles of securities companies' enforcement of shareholders' rights, and accordingly the effect of shareholders' enforcement of rights and the external effect of credit trading guarantee are designed. Thus the deficiencies of existing systems are offset. In addition to the preface, this thesis falls into four parts.The first part deals with the current situations of China's credit guarantee system of securities transactions. Laying the basis of the discourse for questions in the later chapters, this part analyses Marginal Management Pilot and guarantee systems in other related laws and regulations. First of all it introduces the relations in guarantee systems of securities credit transactions. Secondly, it summarizes China's guarantee law system of securities credit transactions into the following aspects: 1. the definition of guarantee of securities credit transactions; 2. the categories of guarantee of securities credit transactions; 3. the adscription of the object in guarantee of securities credit transactions; 4. the effect of guarantee of securities credit transactions. The effect mentioned above can be divided into internal effect and external effect. This part presents a full view of China's guarantee system of credit transactions.The second part is about theoretical predicaments and system deficiencies. This part is illustrated from three points: 1. the theoretical predicaments of the characters of guarantee of securities credit transactions, including the absence of cession in China's legal system and the conflict with some higher laws, for instance, law of guarantee; 2. the theoretical predicaments and system deficiencies of securities companies' guarantee of enforcement of shareholders' rights. By analyzing Article 32 of Marginal Management Pilot, the paper holds that there is theoretical obstacle and absence of effect in securities companies' enforcement of shareholders' rights. 3. system deficiencies of external effect. By analyzing Article 30, it maintains that the absent systems of external effect are as follows: 1. securities companies' rights and obligations at the time of guarantees' bankruptcy; 2. securities companies and clients' rights and obligations at the time of guarantee creditors' bankruptcy; 3. each part's rights and obligations at the time of enforcement.The third part is devoted to the causes of theoretical predicaments and system deficiencies. Firstly, it introduces different theories about the characters of securities credit transactions' guarantee. Having analyzed the differences among them, it believes that it is reasonable to define the securities credit transactions' guarantee as cession guarantee. Furthermore, it exposes and analyses the conflict between the cession guarantee system and China' property law system. Secondly, this part researches on the composition of cession guarantee law. By the introduction of the composition of cession guarantee law theory and analysis of China's property law ideology, the author thinks, in accordance with the particularity of securities credit transactions, cession guarantee's law constitution can be used to solve the theoretical confusions about guaranteed securities' rights and ways of exercising them by securities companies. This belief is also used as a theoretical basis for design of external effects of securities credit transactions' guarantee system. Lastly, this part analyses the system deficiencies of external effect of credit transactions. It probes the situations at enforcement and at the bankruptcy of clients or securities companies, which paves the way for the later improvement of system.The fourth part is about the optimization of theory and system. The part is illustrated from three aspects: 1. cession's role in China's law system. Explaining why China's property law gave up prescriptive property law and how other countries' legislation is like, this part identifies the role of cession guarantee in China's law system. It concludes that cession guarantee, taken as guarantee of securities credit transactions, accords with the special requirement of securities transactions and international integration. 2. the optimization of the theoretical basis and system of securities companies' exercising shareholders' rights. Consequently, it clears the theoretical confusion that the clients' opinions should be asked when securities companies exerts their rights. The effect of securities companies' exertion of shareholders' rights and related responsibility system are improved. 3. the optimization of the external effect system in credit transactions. Although China's law prescribes the situations of enforcement on the clients, it still lacks the prescription of the procedures at the enforcements and bankruptcy of the clients and the companies. In this paper, therefore , the author introduce a legislative proposal for the above-mentioned three cases respectively, 1. Client of Credit transactions bankruptcy case; 2. Securities companies bankruptcy case; 3. The enforcement of securities companies has been the case.Conclusion: The cession guarantee, taken as guarantee of securities credit transactions, accords with the special requirement of securities transactions and international integration, which is the complement of Property law in our country. By the introduction of the composition of cession guarantee law theory and analysis of China's property law ideology, the author thinks, in accordance with the particularity of securities credit transactions, cession guarantee's law constitution can be used to solve the theoretical confusions about guaranteed securities' rights and ways of exercising them by securities companies. Through the research of cession guarantee system's legal constitution, the paper clears the theoretical obstacles of securities companies' enforcement of shareholders' rights, and accordingly the effect of shareholders' enforcement of rights and the external effect of credit trading guarantee are designed. Thus the deficiencies of existing systems are offset.