| The Futures and Derivatives Law,which was promulgated on April 20,2022 and has been formally implemented,provides for the first time the legal aspects of futures trading,futures settlement and delivery,and the basic rights and responsibilities of futures traders,futures operating institutions and futures trading locations,which provides a strong guarantee for the development of the futures market on the institutional level.However,from the perspective of the specific system of mandatory liquidation in the futures market,the Futures and Derivatives Law has not made clear provisions on its constituent elements,and does not include the content of how to distribute the responsibilities among the subjects when the mandatory liquidation is not properly carried out.However,the mandatory liquidation system is not only a necessary risk management control system under the margin trading system in the futures market,but also a system that has the most significant impact on the rights and interests of traders.In practice,futures traders and futures companies also have many disputes over the responsibility distribution on mandatory liquidation.As far as academic circles and judicial practice are concerned,there are many disputes about the legal nature of the mandatory liquidation system,which is more simply defined as a right of the futures company in the process of legal judgment in judicial practice.However,the academic circles basically agree that mandatory liquidation is first embodied as a right of the futures company,and then it will gradually become an obligation of the futures company with the increase of the insufficient margin level or the level of account risk.Based on the view that the legal nature of mandatory liquidation is changing from a right to an obligation,it is a basic idea to divide the responsibility of mandatory liquidation.But equally importantly,through the study of the goal of mandatory liquidation system,especially compared with the United States,which highly respects the commercial discretion of futures companies and sets the goal of mandatory liquidation of futures as a single risk control,we can see that China’s mandatory liquidation system has the dual goals of risk control and protection of traders’ rights and interests.On this basis,it is demonstrated that risk management and control is the primary function of the mandatory liquidation system,and futures exchanges,futures companies and futures traders take futures companies as a link,forming a legal relationship of risk management and control mechanism that gradually gathers in the futures exchange from the periphery of many traders,but at the same time,it is necessary to give consideration to the protection of traders’ interests.From the perspective of rights and obligations,in view of the special status of the futures exchange,mandatory liquidation is a right under the statutory conditions.For futures companies,the attributes of rights and obligations are clearly converted according to the prescribed margin level.When it is higher than the level stipulated by the exchange,it is a right,and when it is lower than the level stipulated by the exchange,it is an obligation.Futures companies should not only fulfill their statutory notification obligations,but also abide by their fiduciary obligations when they forcibly close their positions.As for the trader himself,he is not responsible for macro risk management,but he has a duty of care to hold positions on the premise of protecting his right to know and choose,and he needs to bear the losses and expenses of mandatory liquidation.As far as the specific rights and responsibilities are concerned,it can be divided into proper mandatory liquidation and improper mandatory liquidation.The direct distribution of responsibilities for proper mandatory liquidation has been stipulated by legal rules.However,in the case of mandatory liquidation of futures exchanges,futures companies as clearing members are the direct subjects of responsibilities according to the law,but whether they are the ultimate subjects of responsibilities needs further analysis.Improper mandatory liquidation is embodied in many types of behaviors,and it is the concurrence of breach of contract and infringement from the perspective of civil law.Therefore,it can be summarized from the perspective of breach of contract and tort respectively.In view of breach of contract,it is more important to choose the litigant based on the basic principle of contract relativity,and then to clarify where the boundary of the scope of contract is,to divide the legal content from the agreed content,and to respect the autonomy of the parties to the greatest extent on the premise of abiding by laws and regulations.For infringement,it is necessary to combine specific behaviors,and analyze the four constitutive elements of illegal behavior,loss fact,causality and fault respectively,so as to form a systematic idea of following the basic principles of civil law. |
