| Cross-border transaction of securities is born to rely on the indirectly holding system, this causes that investors can only manifest the interests on securities through the account of their custody, that is to say, this kind of interests (hereinafter referred to as"securities interests") exists without the investor's acquisition of certificate securities. So the security of investors'securities property depends on the relevant intermediary who is their custody. If the intermediary goes bankrupt, securities interests which belongs to investors is bound to face the adverse acclaim of the intermediary's creditors. Thus how to handle the"intermediary risk"to protect investors'securities interests becomes the outstanding problem in cross-border transaction of securities. As to China, legislation on the indirectly holding system of securities is almost absent till now, and basic relationship between different subjects in relevant practice can't be effectively regularized.In order to cope with the reality, chapter one of this paper correspondingly analyzes the new legal relationship in cross-border indirectly holding system, and then detailed basic rules of"Convention On Substantive Rules Regarding Intermediated Securities"drafted and provided by UNIDROIT which can be adopted in future Chinese legislation are discussed in chapter two. Furthermore, the latter part of chapter two supplies domestic law with special regulations on the risk of custody, which establishes a more perfected law system of securities interests. The last chapter aims to enhance the basis of the whole institution—legal nature of securities interests. After analyzing different tracks of countries contrastively,this chapter gives out the point that to characterize securities interests in Chinese indirectly holding system should first satisfies the condition that uncertificate securities is"securities right"in essence, nevertheless, what is securities interests actually needs no qualification, because safeguard of investors'securities interests can be absolutely realized by the use of trust which regulates the relationship between investors and their custody. All in all, China must build up the institution of cross-border indirectly holding system according to the specialty of its own practice. |
