Research On China’s Foreign-related Securities Applicable Law

With the deepening of China’s reform and the continuous expansion of the field of opening up and the rapid economic growth,China’s financial market and securities market have also been greatly developed.Under the background of economic globalization and world integration,China’s securities market Internationalization is unstoppable.The internationalization of China’s securities market is bound to bring many complex foreign-related securities legal relations and legal issues.In order to solve these numerous complicated legal issues concerning foreign securities,it must be supported by relevant mature laws.Looking at the international community,most countries have legislation on the application of foreign-related securities,but the form of legislation is different:some countries apply the laws applicable to foreign-related securities to the country’s private international code.The state has incorporated the content into the civil and commercial codes of the country.The relevant legislation in developed countries in Europe and the United States has matured and improved,and China has no specific legislative provisions applicable to foreign securities laws for a long time.The Law on the Application of Foreign-related Civil Relations Law,which came into effect on April 1,2011,has made a special provision in Article 39 of the Law on the application of foreign-related securities:"valuable securities,the realization of the right to market securities"The law of the land or other laws that have the closest connection with the securities."This has ended the history of the long-standing legal application of foreign-related securities in China.The above provisions of the Act are to attribute the application of foreign-related securities to the scope of foreign-related property rights.However,the legal relationship involved in the application of foreign-related securities is not only a foreign-related legal relationship,it may also include The legal relationship of foreign-related claims,that is,it may also involve the legal relationship of the claims of foreign-related contracts and the legal relationship of claims of foreign-related infringements.Moreover,through the expression of Article 39 of the Act,it can be seen that the different types of foreign-related securities are generally applicable to the law of the realization of securities rights and the law that has the closest connection with the securities.The actual situation is also not conducive to solving relevant legal issues.In view of this,this paper attempts to explain the concept,type and characteristics of foreign-related securities,and analyzes the relevant laws and practices applicable to foreign-related securities at home and abroad.Regarding the legislative basis,legislative characteristics and legislative shortcomings of the applicable rules of foreign-related securities,it puts forward its own ideas on how to improve China’s provisions on the application of foreign-related securities,and hopes to better deal with the legal relationship of foreign-related securities.In addition to the introduction,this paper mainly includes the following five parts:The first part explains the concept,types,characteristics and legal relationships involved in securities and foreign-related securities.Marketable securities generally refer to the issuance of securities,the establishment of the entity or the holder of securities has a property right,a creditor’s right relationship with a particular property,and is marked with a certain amount of written evidence.The so-called foreign-related securities refers to the issuance of securities,the formulation of the entity or the holder of securities has a property right and creditor relationship for a particular property,and is marked with a certain face value and has written evidence of foreign-related factors.Generally speaking,foreign-related securities mainly include foreign-related commodity securities,foreign-related capital securities,and foreign-related currency securities.Usually,the characteristics of foreign-related securities include the characteristics of price,liquidity and independence of securities,as well as foreign-related factors.The so-called foreign-related factors include three aspects:one is the subject of securities holding and issuance,one or both parties are extraterrestrial natural persons,legal persons or other organizations;the second is that the object of legal relationship is outside the domain;the third is the legal facts between the parties to the securities Outside the domain.The legal relationship involved in foreign-related securities can be summarized into three categories:the property rights relationship,the legal relationship of the credits of the contract,and the legal relationship of the credits of the infringement.The second part elaborates the legislative basis of China’s provisions on the application of foreign-related securities laws.The legislative basis of the applicable law of foreign-related securities in China originates from the legislation and practice of the law applicable to foreign-related securities of the international community,as well as the practice of the law applicable to foreign-related securities in China.The international community’s legislation and practice on the application of foreign-related securities is mainly embodied in the following principles:the legal principle of the location of the object,the principle of the law of land,the principle of the closest connection and the principle of autonomy of will.Compared with the relevant legislation of the international community,the relevant legislation on the application of foreign-related securities in China has been embodied in the legal documents such as the Securities Law,the General Principles of the Civil Law and the General Principles of the Civil Law.The third part elaborates the main features of China’s regulations on the application of foreign-related securities.The provisions of the Law on the Application of Foreign-related Securities in China’s Foreign-related Civil Relations Law mainly reflect the following characteristics:the law applicable to foreign-related securities is regulated by the unconditional choice of applicable conflict norms;The principle of the closest connection;adopting the"same system"in the application of the law,that is,not distinguishing foreign-related commodity securities,foreign-related monetary securities and foreign-related capital securities,but treating them as a whole,applying uniform legal rules;There is no introduction of the principle of autonomy of meaning.The fourth part analyzes the main shortcomings of China’s regulations on the application of foreign-related securities.The main shortcomings of China’s provisions on the application of foreign-related securities laws are at least as follows:First,the rules for the application of laws are too general;second,the connection points of the established laws apply too simple;third,since foreign-related The price securities not only involve the legal relationship of foreign-related property rights,but also often involve the legal relationship of the creditor’s rights of the contract and the legal relationship of the creditor’s rights of the tort.These two kinds of legal relations usually apply the principle of autonomy of will,but China’s foreign securities law The applicable rules did not introduce the principle of autonomy of will.The fifth part elaborates the idea of perfecting China’s regulations on the application of foreign-related securities.First,different legal application rules should be formulated according to different types of foreign-related securities;secondly,the link point of the legal application rules of foreign-related securities should be appropriately expanded;finally,when the legal application rules of foreign-related securities should be determined Introduce the principle of autonomy of meaning.