Legal Analysis Of The Standards For Identifying Illegal Futures Transactions

In recent years,the commodity trading market for gold,silver,crude oil aromatics,non-ferrous metals and other commodities has developed explosively.Some trading platforms which are based on similar futures trading mechanisms wantonly attract customers' investment,evade financial supervision deliberately,and carry out illegal futures trading activities.The silver commodity trading cases revealed in the cctv march 15 th evening party on the protection of consumer rights in 2014 and the oil commodity trading cases exposed in "Focus Interview" program in 2016 have made the issue of illegal futures trading more and more well known and concerned.The increasing number and complexity of illegal futures trading cases are testing the timeliness and maturity of our national futures market laws and regulations.There are some historical reasons for the emergence,flooding and rectification of illegal futures transactions in China.Some of the reserved commodity trading markets have gradually evolved into illegal futures transactions with legitimate excuses.Looking at the development process of the identification standards of the illegal futures transaction in China,it has gone through a improving process from "the formal requirements" to "the combination of form requirements with functional requirements".However,there are still three shortcomings in the application process of specific cases.First,in the form,the unclear core trading mechanism of the futures trading hinders the innovation and development of the forward commodity trading.Second,in terms of functional requirements,the purpose of the transaction based on the terms of the contract is unclear,which leads to the speculative problems seriously.Third,in terms of determination methods,a mixture of the administrative and the judicial determinations can reduce judicial credibility.Through the inspection of the foreign standards for the identification of illegal futures transactions,some of the experiences and practices are worthy of our reference and learning.First of all,it is clear that the forward commodity transactions which have futures trading functions and risks are integrated into the supervision of futures legislation.Secondly,it is clear that the futures contracts are the focus of distinguishing between the futures markets and the spot markets.Thirdly,it is clear that the validity of judicial determination is ultimate.Therefore,we should focus on the analysis of the legal structure of futures trading,the core trading mechanism of the futures market;the transaction purpose of futures contracts;and the administrative determination opinions as evidence in judicial proceedings.After that,some feasible measures to improve China's illegal futures transaction identification standards were proposed in this article.Firstly,the identification of illegal futures transactions should be based on the basic concept of balancing " themanagement" and " the development",and " the form" and " the function".Secondly,we can use the model of " the core mechanism and the risk management" to make a principled distinction with integrating these trading activities with trading risks into the supervision of futures trading in form,use the model of " the content consideration and the contract review" to make a essential identification with integrating these trading activities to judge the transaction purpose of the actual futures transaction in functional,and use the model of " the value argument and the logic construction" to be used as a comprehensive judgment standard for illegal futures transactions to reache the final conclusion.Thirdly,we should determine the neutrality and authority of judicial determination,and attach importance to the work of examining the legality of evidence.What is particularly important is that the identification standards for illegal futures transactions are changing,we should conduct specific analysis based on the needs of financial innovation and judicial practice.