The Reconstruction Of Guarantee System Of Margin Trading In China

The margin trading is of great significan ce to prom ote the all-round developm ent of China's securities m arket,and the guarantee syst em is the basis of the "credit supply" of margin trading.In order to take into account the efficiency of securities transactions and the legitimacy of the guarantee system itself,China's relevant legislation creatively introduces the trust system,trying to use the trust principle and framework to construct the guarantee legal relationship of margin trading.However,after careful examination,it will find that the current trust structure is not worthy of the nam e,contrary to the basic principles of the trust law,and even conflict with the existing guarantee legal system of our country.Those defects m ake China's margin trading into a security dilemma,so it has been subjected to so much criticism.In this regard,the practical and academic circles try to find som e new ways,and put forward four ways to reconstr uct the confusion guarantee system for current margin trading,including the legal system of declaration trust,transferring guarantee interpretation theory,account pledge design,and the maximum amount pledge mode.Among them,the declaration of trust is short of feasibil ity obviously becau se of the lack of dom estic theoretical and practical basis,and account pledge design is difficult to be recognized because the dislocation of account owner's identity causes a large leg al risk.Because it does n't need to transfer possession of collateral,the tran sferring guarantee is sim ple to operate,and seems easy to achieve the double purpose that investors to continue to use collateral for securities transactions and guarantee securities company's claims,simultaneously also to overcome the procedural constraints of tradition al guarantee,so is favored by the securities industry.However,in contrast to the rationality of the system of alienation guarantee,its legitimacy is questioned.If it is introduced in to the margin trading,it will be difficult to adapt to the legal environment of our country at the present st age and play its own role.In a word,the transferring guarantee is lack of feasibility.In contrast,as one of China' s statutory security rights,the maximum amount pledge doesn't violate the principle of numerus clausus,also can adapt to China's legal environment.In addition,through a careful analysis of China's margin trading structure and account settings will be found it is very fit with margin trading,and even to meet the margin business needs of the future expansion of credit.As for the publicit y,the specificity of collateral,the return of ownership and other individual issues,it only need to be procedurally simplified and modified on the basis of the same transaction practice and foreign experience,so the cost of modifying the law is lower.Therefore,the maxim um amount pledge m ode is possible to realize the balance between institutional innovation and traditional legal theory.Firstly,this paper analyzes the current situation of Chin a's margin trading guarantee system by combing the structure of China's margin trading,the setti ng of account and the relevant regulations.Secondly,it makes a review of the guarant ee system of the current trust structure.Thirdly,it analyzes the legitimacy,feasibility and necessity of the above four kinds of reconstruction paths,and obtains the conc lusion that the m aximum amount pledge mode should be adopted.Finally,under the m aximum amount pledge mode,it put forward som e specific suggestions for the reconstruction of guarantee system of margin trading in China.