Study On Legal Issues Of Securities As Margin Collateral In The Futures Market

The futures margin system runs through the whole process of futures trading and clearing,and is an important system for risk control in the futures market.It plays an important role in futures laws,regulations and the clearing rules.The unified futures clearing mechanism gathers the risks,and the margin is used as the guarantee for clearing and performance of futures trading.It is an important measure for futures clearing house to diversify and control risks.Risk management measures such as systems of daily debt-free settlement and forced liquidation are all operated and developed on the basis of the margin system.Therefore,the futures margin system is the core of the futures trading and clearing system.Futures margin is usually paid in the form of currency cash,but with the development of the futures market,securities have gradually become an important form of futures margin.Replacing the futures margin with securities instead of currency cash can reduce transaction costs,improve the capital usage efficiency,and improve the operational efficiency and quality of the futures market.The form of securities is diverse.The form of securities that can be used to cover futures margin not only affects the calculation of the amount of futures margin,but also affects the way and efficiency of the operation of margin system.Stock is different from document of title and debt security in securities,which has certain particularity as equity security.First of all,the stock carries a series of rights of shareholders and will generate various forms of profits,which requires clarifying the legal nature of the stocks to cover the futures margin in the legal system,thus determining the ownership and exercise of the profits,the performance of the information disclosure obligations,etc.Secondly,the stock is uniformly registered by the securities registration authority.The introduction of stocks in the futures clearing mechanism needs to improve the clearing efficiency and risk prevention capability of the futures clearing house,and strengthen the connection of the futures clearing house with the securities registration and clearing institution.Finally,after the stocks covering the futures margin,they should be separated from the own properties of transaction parties and shall be specially managed to prevent improper disposal,especially in the case of bankruptcy,it is necessary to protect the stocks as clearing properties.At present,major futures markets around the world allow to use securities to cover futures margin,especially stocks.However,although China has allowed the use of standard warehouse receipts and government bonds to cover futures margin,the proportion of use in transaction practice is relatively small,and the system of stocks to cover futures margin is totally blank.On the one hand,the design of institutional rules ignores the objective demand of stocks to cover futures margin.On the other hand,the shortcomings of the system of securities covering futures margin and the futures clearing system itself also limit the construction and development of the system of stocks to cover the futures margin,which has hindered the sustainable development and internationalization of China’s futures market.Based on this,this article uses the system of securities to cover the futures margin as the institutional background,takes the stock as the entry point,analyzes the legal relationship and clarifies the legal basis of the system of securities to cover futures margin,and provides institutional paving for the design of the system rules;analyzes the objective demand of stocks to cover futures margin,expounds the legal significance and institutional value of stocks to cover futures margin,and provides theoretical basis for the introduction of the system;provides a reference for China’s development of the system of stocks to cover the futures margin through the analysis of the rule design of the securities and stocks to cover futures margin in the extraterritorial developed futures markets;reveals the problems of pledge registration system,futures clearing system,and the isolation protection of clearing property system in the process of introducing stocks into the futures margin system and provides corresponding solutions and countermeasures,aiming to provide reference for the development of the system of securities to cover futures margin in China,the futures margin system and the futures clearing system,so as to promote the development and internationalization of China’s futures market.The text of this article is divided into the following four chapters:The first chapter analyzes the legal basis of the securities to cover futures margin.Firstly,this chapter clarifies the characteristics,types and legal nature of the futures margin through the analysis of the legal basis of it,which provides a theoretical basis for the analysis and discussion of the following.Secondly,combining with the analysis of the legal relationship and the scope of the securities to cover the futures margin,this chapter clarifies the legal nature of it,which provides a basic institutional framework for the construction of the system in the following.Finally,this chapter clarifies the particularity of the system of securities to cover the futures margin by comparing with other similar systems,which provides an analytical perspective for revealing the shortcomings of the system and proposing solutions afterwards.The second chapter analyzes the legal difficulties of the system of securities to cover futures margin.Firstly,this chapter points out the limitation of the scope of securities in China by analyzing the positive significance of the securities to cover the futures margin and comparing the scope of securities in extraterritorial developed futures markets as reference.Secondly,this chapter analyzes the objective demand of stocks to cover futures margin from the three perspectives of individual,market and system,which indicates the necessity of stocks to cover futures margin.Finally,based on the particularity of stock in security,this chapter analyzes the particularity of stocks to cover the futures margin in detail,by comparing with the guarantee system margin trading,making the analysis of the problems and the proposal of improvement measures are more targeted in the following.The third chapter analyzes the legal obstacles faced by the introduction of the system of stocks to cover futures margin from three aspects of the system of pledge of right,the registration and clearing mechanism,and the system of isolation protection of clearing property.Firstly,this chapter analyzes the shortcomings of the current pledge rules and the legal obstacles.Secondly,this chapter points out the problems that the futures clearing mechanism is not unified and the legal status of clearing house is not clear in the current futures clearing system in China.Finally,on the basis of emphasizing the value of isolation protection of clearing property,this chapter analyzes the status quo and existing problems of clearing property protection in China.At the same time,this chapter analyzes and references the systems of extraterritorial countries or regions in the above three aspects,and explores the enlightenment of extraterritorial institutional rules to China by combining the current legal system and the characteristics of futures market in China.The fourth chapter puts forward suggestions for the improvement and development of the system in view of the legal obstacles in the three aspects revealed in the third chapter.Firstly,make sure the legal validity of pledge and transfer pledge in the system of securities to cover the futures margin,on basis of which,formally introduces the stock into scope of the futures margin,and set the pledge registration system of the stocks futures margin account.Secondly,establish an independent and unified futures clearing house and clearly define its central counterparty status in law,aiming to solve the problems of the scattered futures clearing house with unclear legal status,and strengthen the information sharing with securities clearing institution at meantime.Finally,establish the isolation protection system of clearing property,clearly define the principle of the priority of clearing property,and establish the system of the bankruptcy exception of clearing property.Clarify the rules on the collection of rights and the exercise of shareholders’ rights under the independent operation management of clearing property on the basis of the particularity of stock.Propose the development direction and construction mode of institutional rules from the above three aspects in order to promote the development of the system of securities to cover the futures margin in China.