On The Conflicts And Resolutions Of Administrative Logic And Judicial Logic In The Real Stock Debt Act

The clear debt is a kind of innovative transaction that is gradually formed in the commercial field.It is subjectively manifested as the autonomy of the parties to the investment and financing.It is manifested in the form of equity financing.In terms of debt and debt sharing,it is more inclined to debt financing.The "Guiding Opinions on Regulating the Asset Management Business of Financial Institutions" in April 2018 strictly stipulated that financial institutions must not promise to protect the capital and the income when conducting asset management business.Due to capital preservation and guaranteed income characteristics of the clear-bond debts,it has become the main supervision and prohibition object of the financial supervision department.However,due to the lack of high-level legal regulations in the domesticfinancial field,there are no existing laws and regulations that explicitly prohibit the clear-bond debts.As a result,judicial rulings generally disagree about the nature of "obvious debt." The regulatory stance of the administrative organs is very different from the judgment of the judicial department,which leads to the ambiguous attitude of commercial entities towards real debt,which greatly reduces the effect of supervision and greatly affects the effectiveness of administrative norms and legal policies.Therefore,it is necessary to make use of the influence of financial regulatory norms on the effectiveness of commercial contracts and change the thinking and methods of judicial adjudication.In the commercial field,we will strengthen the penetrating supervision of "clear debts",use legal hermeneutics to promote judicial coordination,and determine and unify the logic of administrative supervision and judicial judgment.