Research On Legal Issues Of Disputes Over OTC Contracts

In 2015,China's stock market fluctuated drastically.The stock price crash caused a large number of OTC financing accounts to be forced to liquidate,causing serious economic losses to investors and funders,and there was a strong controversy over the distribution of losses.Civil and commercial cases involving disputes over OTC funds have gradually appeared in local courts.Taking a case of contract dispute between Zhong Xiong and Chen Zhaobing as an example,the main focus of the disputes in the case are: the legal nature of the OTC financing contract,the effectiveness of the OTC financing contract and the distribution of responsibility for the forced liquidation loss.The response to the focus of these three disputes is also the key issue of the study of OTC financing contract disputes.Regarding the question of how to determine the qualification of OTC financing in civil and legal relations,the academic and practical circles have not reached a unified understanding at present,but in the discussion,they basically formed three kinds of entrusted wealth management,private lending or atypical contracts.A mainstream view.However,the off-exchange fund-sharing contract does not meet the basic characteristics of “trust” and “risk sharing” in the legal relationship of entrusted financial management,and the legal relationship of private lending cannot fully reflect the “borrowing”,“stocking” and “off-market” contracts.The guarantee “three items complement each other”,so the off-site fund-sharing contract does not belong to the entrusted wealth management or private lending legal relationship.In view of the fact that the OTC fund-raising transaction and the securities company's on-market financing transaction are basically consistent in the relationship between transaction structure and civil law,it is possible to learn from the financing and securities lending disputes and treat the OTC financing contract as an atypical contract as an independent civil contract.Legal relationship to deal with.With regard to the question of how to determine the effectiveness of OTC financing contracts,the current practice of judging the dichotomy of the two points as the basis for judging the validity of illegal contracts in the judicial practice has many defects such as normative ambiguity,causal inversion and judicial oversteps.question.Drawing on the current "normative purpose" in Germany,the comprehensive measurement of contract effectiveness according to the purpose of regulation can effectively ensure the balance between the normative purpose and the regulatory means.According to this line of analysis,the off-exchange fund-sharing contract violates the provisions of Articles 80 and 166 of the Securities Law on the real-name account system and the provisions of Articles 122 and 142 on the financing and securities lending business.There is no serious conflict between the content of the contract and its legislative purpose,and the extra currency of the OTC financing contract itself is low,and there is no need to invalidate the contract.Moreover,almost all disputes over OTC financing contractual disputes occur when the contract has been fulfilled.At this time,the invalidity of the contract is not only lost the effectiveness of maintaining the normative purpose,but will encourage the parties to maliciously defend and undermine the principle of good faith.In addition,there is no inevitable connection between the stock price crash in 2015 and the over-the-counter fund-raising transaction.It is considered that the OTC financing contract has a sufficient basis for harming the public interest.Therefore,after comprehensive measurement,the off-site fund-sharing contract should be valid.In the case of contract dispute between Zhong Xiong and Chen Zhaobing,the “Guidelines for Financing Disputes” issued by the Shenzhen Intermediate People's Court and the Shenzhen Intermediate People's Court adopted the “effective contract treatment” method to allocate the losses caused by forced liquidation,which further explained The validity of the off-site fund-sharing contract is determined to be valid.On the premise that the liability for the forced liquidation loss is distributed,in the premise that the off-exchange capitalization contract is valid,in principle,the investor shall bear the loss at the time of timely liquidation according to the contract,but the loss caused by the unsettled liquidation shall be expanded.The part should be borne by the funder,the platform company and the investor according to the principle of fairness and fault liability.The OTC fund-raising transaction in the case was mainly due to the volatility of the stock market in 2015 and the collapse of the stock price,which led to the unsatisfactory leveling of the stock,which led to the loss expansion.Therefore,the entire loss of the forced liquidation should be undertaken by Zhong Xiong,Zhong Xiong has Chen Zhaobing continued to pay off the obligation of 874,400 yuan in capital allocation.