Futures Exchange Civil Liability

This paper has five chapters, which give a discussion about the exchanges'responsibilities in civil law.Chapter One makes a summary of exchanges'civil responsibilities on its history, the foreign legal system and the legal sources of it in our country. The first section is a brief review about the history of futures'development and the construction of legal system in our country; particularly indicates that since initiating the reforms and open policy, especially in these years, China has made a great success in establishing the legal system of the futures market. The relevant legislative structure has almost built and the development of the futures market becomes more and more standardized. The second section gives an introduction of the legislative status and the regulations on the exchanges in several main developed foreign countries. From that we can see on one hand, the legal system of futures in the foreign countries is fairly mature and integrated; on the other hand, as to the responsibility of the exchanges, most of the regulations are about the right infringement and tends to protect the benefits of the investors and the market participators. The third section makes a systematical review of the legal sources of exchanges in our country. The basic regulations include the Regulations on the Administration of Futures Trading by the State Council, the Measures for the Administration of Futures Exchanges by China Securities Regulatory Commission and the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Futures trading Dispute Cases. The above three regulations rules the exchanges' responsibilities from different aspects. They provide applicable laws for identifying the responsibility and dealing with the related disputes.In Chapter Two the discussion focuses on the basis that the responsibility of exchanges comes from. The futures exchanges is the core subject in the futures market. Between them and the market trading subjects there is a legal relationship in civil law arising from the contractual relation between the equal subjects and also a self-controlling administration relationship arising form the internal supervisory relation. The later consists of not only the internal legal relationship between the exchanges and their members but also the external legal relationship between the exchanges and other trading subjects. Analyzing the three fundamental functions of the exchanges, of which the service function can produces the promissory duty, the supervisory function and the function of warranty produce the statutory duty. The functions of service and warranty reflect the contract relationship in law between the exchanges and other subject in the market mainly including in the intermediary contract relationship, the service contract relationship and warranty contract relationship. The supervisory function reflects the self-controlling administration relationship between the exchanges and the other subject in the market. The exchanges should protect the confidential interest of the other subjects and exercise the supervisory power in compliance with the principle of justice and propriety.Chapter Three is about the classification of civil responsibilities. There are different categories according to different criterions. In Section One, the civil responsibilities are divided into breach responsibilities and infringement responsibilities and given an explanation on their forms. In Section Two, the civil responsibilities are divided according to the different steps of trading. There are responsibilities during the trading, the clearing, the performance and the delivery, and explanations to them as well.Chapter Four give a presentation of the essential components and forms of exchanges' responsibility in civil law. Section One is an analysis on the three components of civil responsibility, which is applicable in the circumstance that the breach of contract is one's own fault. When the breach of contract is caused by others, the exchanges should bear the warranty responsibility stipulated by law. To establish such a responsibility, besides the general elements need to be met, it also requires the breach of one party to the trading. Hereby the exchanges whose warranty duty remains undone should bear responsibility for that. The infringement responsibility is mainly due to improper supervisory acts. In this situation, the exchanges violate its supervisory principle of justice and propriety and harms the confidential benefits of the administrated and commit infringements therefore should bear civil responsibility for infringement. Section Two gives explanation to the five main forms of responsibility in civil law and the situation where they can be applied, which are compensation for the whole, for one's part, joint, replaced and according responsibilities.Chapter Five discusses on the problem of how to improve the present responsibility of exchanges in our country. Section one gives a reflection on the stipulation of rules on exchanges'responsibility in civil law and emphasis on giving a feedback to the responsibility of exchanges in the tendency of emergence of exchanges corporations. It is better to make the function of clearing separating from the others and adjust the overruling warranty responsibility. Section Two gives legislative suggestions for the future Futures Law on the standardizing of contract relationship, identifying the responsibility of breach, transferring of clearing risks, infirming the warranty responsibility, establishing compensation foundations and the enhancement of infringement responsibility.