| This article takes the current state of judicial adjudication of OTC placement contracts as a starting point.The reality shows that as OTC placement is an objective need for financing,it is repeatedly prohibited through legal means.This article examines the current state of litigation in relation to OTC placement contracts,analyses the legal principles and judicial practice recommendations that should be followed in determining the validity of OTC placement contracts,and argues that the issue of liability for OTC placement contracts under the dualistic determination of validity should be categorised and discussed.The first part of the article defines the foundational concepts of OTC placement contracts.The first part of the article defines the concept of OTC matching contracts,which is characterised by high leverage,security and sole use of funds.Secondly,the reason for the regulatory peak of OTC placements is the stock market crash that occurred in 2015.OTC matching contracts contain three forms of transactions,namely the individual lending account model,the internet-based matching model,and the umbrella structured trust matching model.The second part of the article focuses on the judicial practice of OTC matching contract disputes.On the one hand,it compares and analyses the public cases on OTC matching contract disputes in recent years,providing statistics on the yearly trend of the number of OTC matching contract cases,the distribution of provinces,the distribution of trial procedures,the determination of the causes of action and the trial status of courts at various levels.On the other hand,we summarize the judicial adjudication ideas of OTC matching contract cases,and summarize the legal sources and typical case adjudication ideas based on the validity of OTC matching contracts.Finally,the conclusion is that the number of OTC matching contract cases has been increasing year by year,the distribution of cases is positively correlated with the level of economic development,there are more provisions for determining the validity of contracts,and the phenomenon of "different judgments for different types of cases" exists.In the third part,the legal issues of OTC matching contracts are presented and analysed,specifically: The autonomy of private law intention in individual cases should take precedence over the protection of public order（financial order protection）,and the autonomy of the parties’ intention should not be denied on the basis of the violation of public order,including the financial order in public law;The violation of mandatory provisions in the matching contracts is not ipso facto invalid,and the jurisprudence is analysed to determine the validity of the matching contracts by analogy with the regulatory nature Mandatory norms;The legal problems that exist in the liability part.This includes the request for the return of the allotted funds not only the right to claim the return of the original property.The current treatment of claims for proceeds is unreasonable.Under the dualistic determination of the validity of the matching contract,the liability for forced liquidation should be dealt with separately.In the fourth part,recommendations are made in relation to the problems in the judicial adjudication of OTC placement contracts.Specifically,the determination of OTC matching contracts should adhere to the principles of meaningful autonomy,purposefulness,private rights protection and case-by-case determination,and the validity of different types of matching contracts should be determined according to the different types of OTC matching contracts,the degree of social harm and case-by-case weighing;judicial adjustment should be made to the current determination of the validity of OTC matching contracts,and it is recommended to take the initiative to review the subject and contract content of the OTC matching contracts.To prudently determine the validity of OTC placement contracts and establish a unified standard for determining the validity of OTC placement contracts.Further explain the reasons for judicial decisions on the validity of OTC placement contracts and clarify the mandatory provisions violated by placement contracts;changes in the criteria for determining the validity of OTC placement contracts will inevitably lead to changes in the consequences of contractual liability.The competing claims for the return of the principal are the competing claims for the return of the original property and the claim for unjust enrichment;This is a particularly controversial issue in jurisprudence,such as whether or not the counterparty can claim interest（claim for interest）,the claim for earnings on a profitable account,and the liability for losses after the forced closing of the position,and the liability of both the counterparty and the recipient after the penetration of the position.The specific issues include the right to claim earnings on the specific contract,divided into three parts,namely the original agreement,the appreciation of the securities market and the loss part,and the analysis of the liability of the parties for forced liquidation after the matching contract has been valid or invalid,combined with the merits of the Judgment Guidelines of the Shenzhen Central Court and the Jiu Min Min Min,respectively,and the proposal to give the matching party the right to apply for forced liquidation of the position. |
