Research On The Penetrating Trial Of Financial Dispute Cases

At a time when national regulation is increasingly tightened and social financing needs cannot be adequately met,financial innovation is on the rise.The ensuing problem of evading financial regulation by means of financial innovation shells inevitably poses a threat to China’s financial security and social stability.For this reason,the judiciary has gradually adopted the concept of penetrating trial.Judiciary penetrate the appearance of the contract and attach importance to the study of the true intention of the parties and use it to identify the type of legal relationship.The core concept of penetrating trial is the substance over form and judicial activism,which requires judges not to be bound by contract appearance,but to actively use their discretionary power to achieve substantive justice.The specific path of penetrating trial mainly includes the rule of conspiracy to defraud,legal principles,social public interest and regulatory rules.This article summarizes the criteria of penetration by searching the judicial decisions of the People’s Court in the fields of real debt with equity character,trust,notes,financial leasing and factoring.However,there are problems in their application.Firstly,the theoretical system and the penetration standard are not clear.Secondly,there is an incongruity in the application of the rule of conspiracy to defraud.Thirdly,the People’s Court mistakenly consider motive as a constituent element of intention and the purpose interpretation is overapplied.Fourthly,there is the problem of the people’s court applying the regulatory rules for trial and the unclear grasp of the public interest.In order to overcome the above problems,this paper makes the following suggestions:First of all,to establish the theoretical system of penetration trial and penetration standards.Secondly,the commercial law should be amended.Thirdly,to determine the boundaries and limits of penetration.Fourthly,pay attention to the protection of the rights of bona fide third parties.Fifthly,to apply regulatory rules carefully and reasonably define the public interest.Finally,the people’s courts should also pay attention to strengthening the argumentation and reasoning of judgments,while enhancing the professionalism of financial trials.