Judgment Of The Effectiveness Of Law Evasion In Innovative Financial Products

This paper mainly analyzes the private law effect of law evasion in innovative financial products.According to the logic of the judges,this paper divides the validity judgment of legal evading behavior in innovative financial products into two steps,namely,the identification of hidden behaviors and validity,and find out the basic logic of legal judgment,and then puts forward some advices for improvements of the judicial review.Apart from the introduction,the article is divided into three parts:The first part is about the identification of hidden behaviors of innovative financial products.This process can be divided into two steps: the determining of the judgment method and the determining of the judgment boundary.For the former,transforming behavioral agents,subject matters and behavioral patterns are typical measures for financial institutions to evade the law.So the court should focus on the real purpose of circumvention measures by means of penetrating identification at the same time of differentiated determination of circumvent measures in trial.For the latter,it's the boundary that court must control well when it deals with financial innovation product evasive behaviors and ensures market rules to operate effectively.At the same time,the court should insist on the use of business habits and judicial opinions as the basis of supplementary definition.The second part is about the criterion for judging the validity of the hidden behaviors of innovative financial products.The validity of the hidden behaviors should stick to the double standards.First,it doesn't violate the mandatory provisions of laws and administrative regulations.On the macroscopic dimension,the level of laws and administrative regulations should be strictly followed.On the basis of subdividing compulsory regulations into mandatory rules on requirement and mandatory rules on effectiveness,the applicable field of mandatory rules on effectiveness should be restricted strictly.Secondly,it doesn't violate the public order.The link between public order and the circumvention behaviors is that the misconducts of innovative financial products may impact the protection of financial security and investors' interests.So,on the basis of clarifying the concept of public order,it is necessary to clarify external impact that the circumvention behaviors of innovative financial products may result in according individual cases when the court judges the validity of innovative financial products.The third part is about the reasonable judicial position in the judgment on the validity of innovative financial products.As a whole,we should uphold the reasonable theory of judicial review,establish and adhere to the basic principles of judicial review.As far as the reasonable theory of judicial review is concerned,the priority of overall interests of the country and the balance of interests of the market subjects are the overall concept that must be considered in the validity judgment.The moderately advanced theory of creative justice is an inevitable requirement for ensuring the rapid development of the financial industry.Financial justice should also fully consider the dialectical advancement of financial security and financial innovation.As far as the basic principles of judicial review is concerned,it should be based on freedom,adhere to the principles of autonomy and freedom of contract,and fully respect market subjects and make it play the main part effect.Respect the principles of industry rules and try to avoid confusion that be caused by improper justice.In addition,the validity judgment of innovative financial products should also review its reasonability on the basis of legality review to make the best judgment on the validity of innovative financial products.