| Bulk commodity electronic trading market is an important part of spot trading market.In 2018,according to statistics,a total of 2461 commodities electronic trading market in China,more than 30 trillion yuan of the use of modern barter trade scale of financial tools to facilitate the spot trading market,in the further development in the spot market plays an important role,but also some commodity electronic trading venues facing the alleged violations,There are even legal risks of illegal operations.By 2022,after recent years of clearing and rectification of trading venues,mergers and reorganizations of trading venues in provinces have been closed,and the number has dropped sharply.According to incomplete statistics,only 251 trading venues of various types have been approved.Clean-up work is still under way.One of the main,and now unresolved,issues is the growing prevalence of alleged illegal futures trading activity in spot trading venues.One of the main reasons for illegal futures trading is the lack of effective identification standard in law.To solve this problem,General Office of the China Securities Regulatory Commission,Ministry of Commerce and People’s Bank of China jointly formulated Decree No.3 of the Ministry of Commerce[2013],which issued Standards and Procedures for Identifying Illegal Futures Trading activities in commodity Spot Market.In China’s judicial practice,the people’s court not only determines the suspected illegal futures of spot trading venues according to the Order No.3 of Ministry of Commerce[2013],but also makes judgments based on the examination results of spot trading venues by relevant administrative departments in the clean-up and rectification work.As for the recognition of illegal futures cases in spot trading places,there is no unified distinction standard,resulting in different judgment results in the same case.In addition,the people’s courts also have great differences on whether the administrative department is required to make a preliminary determination in the identification of illegal futures trading casesBased on the definition and characteristics of spot trading,futures trading and illegal futures,and the analysis of the legal positioning of spot trading venues and the legal relationship between the two parties,this paper mainly discusses the illegal futures in spot trading venues from three parts.The first part introduces three spot trading places suspected of illegal futures trading case,a different court in connection with the case according to the standard of the Ministry of Commerce[2013]of the third order but different referees results,also according to the relevant administrative departments in the rectification work of the review results of spot trading places for the referee,even cognizance administrative department,Otherwise,it will not be heard.According to the transactions involved in the three cases,the focus of the disputes is summarized,that is,how to identify the transaction nature of the platforms involved and the effectiveness of the transactions involved;Whether the determination of the administrative department is the pre-procedure for the determination of the nature of the transaction involved.The second part is to analyze the focus of the controversy and find out the legal problems existing in China’s spot trading venues.Based on the three cases,this paper discusses how to identify the trading nature of the platform involved,and discusses the main manifestation of the confusion between spot trading and futures trading,that is,the trading object is suspected of futures contract,the trading purpose is suspected of non-delivered goods,and the trading method is suspected of centralized trading.Further combining with the spot illegal trading futures trading places the development and change of the recognition rules,the existing academic research achievements,the difficulties faced by defining standards,puts forward a new definition standard,namely the overall judgment theory,distinguish between spot and futures trading,according to the deal overall comprehensive decision,and should not be relied on some trading rules based on both the similarities of explicit judgment.As to whether the recognition of the administrative department is the pre-procedure for the identification of the nature of the transaction involved,the paper analyzes the ambiguity of the supervision subject of illegal futures in spot trading places,the legal risk of the administrative recognition as the basis of the judgment result of illegal futures or the pre-procedure of the recognition and its unlegitimacy.Finally,in the third part,the author puts forward specific suggestions on combating illegal futures trading in spot trading places and promoting its development from the following aspects:formulating relevant laws and regulations,improving the judicial standards for the identification of illegal futures,strengthening the unified supervision subjects,and improving the trading rules of the pilot spot trading places. |
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