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Reconstruct The Definition Of “Securities” Under The Securities Law

Posted on:2016-11-06Degree:MasterType:Thesis
Country:ChinaCandidate:S Y XiaFull Text:PDF
GTID:2296330461962331Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
In the trend of uniform legislation of global financial products and the profound reform of dematerialized securities, the applicable Securities Law needs to be reconstructed as prompted by a series of system defects due to the lack of connotative definition, narrow interpretation of denotative definition and undefined form of securities carrier. As the Securities Law is expected to be revised, reconstructing the definition of “securities” under the Securities Law should be based on the practices of securities market and the reference to the advanced experience of foreign legislation. Four parts constitute this paper as described in the following introduction:Part 1 gives definition to the dual structure of securities. “Securities” is defined in respect of the specified rights of securities and the carrier form of securities, which is the agreed definition of securities. By the theory of traditional dual right structure of the securities, the ownership of securities is closely associated with the “things” of securities, while the rights of securities is the collectively term of the specified rights of securities. The element structure of securities definition coincidentally maps with the dual-right structure of the rights of securities. Thus, securities defined by the dual-element structure which is based on the rights of securities and the carrier form of securities is the basic route to define the securities. According to the new market environment and applicable legislation of the Securities Law, reconstructing the definition of securities should be carried out by clarifying the connotation of the rights of securities and changing the carrier form of securities.Part 2 clarifies the connotation of the rights of securities. The applicable Securities Law falls short of summarized definition to securities, undefine the connotation of the rights of securities, and significantly lacks of the illustrated types of securities, which provides no reference to the spill-over financial products from the Securities Law. In this concern, this part gives a summarized definition to securities and expands the types of securities based on the definite connotation of the rights of securities. Securities under the Securities Law should be the equity certificate in various forms of appearance in compliance with the connotation of the rights of investment securities. Securities should also include financial management and civil financing instrument in addition to the illustrated types under the Securities Law.Part 3 introduces the changed carrier form of securities. Since the dematerialized securities, the carrier form of securities changes from paper to dematerialized in terms of carrier form and securities account and electronic record in the account become the new carrier form of securities. The applicable Securities Law establishes that the electronic carrier form is unable to provide sufficient support of the legislation of dematerialized securities and systematically address the ownership determination and transfer or other related issues in connection with the rights of securities in the context of dematerialized securities. With a view to restricting the definition of securities, securities account and electronic record should be the basis to describe the carrier form of securities, in order to enhance the awareness of dematerialized securities and change the traditional thinking of paper securities.Part 4 suggests the revision of the Securities Law. In the language of legislation, it remains the wording “securities” instead of the greater financial concept like the invented “financial investment commodity”; with a view to the legislation model, summary and illustration should be adopted with the supplementary authorized statutes. Securities under the Securities Law should be defined as the investment interests certificate carried in paper, account record or others. Extended illustration will be made in five respects: equity, debt, trust beneficiary right, derivatives and investment contract in addition to the summarized definition and power of identifying other investment interests certificate should be delegated to Securities Regulatory Management Committee.
Keywords/Search Tags:Securities, Types of securities, Investment contracts, Dematerialized securities, Securities account
PDF Full Text Request
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