金融法（双语）第八章金融衍生产品法律制度

,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,*,第八章 金融衍生产品法律制度,一、金融衍生产品简述,二、对金融衍生产品的监督,第八章 金融衍生产品法律制度,一、金融衍生产品简述,定义：金融衍生产品Derivative是与金融相关的派生物，通常是指其价值依赖于根底资产(underlying assets)价值变动的合约(contracts)。,种类：主要包括远期、期货、互换、期权以及它们与其他金融工具经分解组合形成的混合金融产品。,金融衍生产品的交易可分为场内交易和场外交易。,地位：金融衍生产品是全球金融创新的浪潮中涌现出的高科技产品，是金融创新工具的重要组成局部。,第八章 金融衍生产品法律制度,一、金融衍生产品简述,1.中国的金融衍生产品,定义：金融合约,开展特点：起步晚，开展快,现状：场内交易中产品单一，且交易限制较多；场外交易中产品品种丰富，交易的限制较少,对策：借鉴经验和教训，坚持推动金融衍生产品市场的标准开展,第八章 金融衍生产品法律制度,一、金融衍生产品简述,2.美国的金融衍生产品,Definition:a type of financial compact；,Amercia is the resource and the leader of the Financial derivatives(1972),Present situation:Profit and crisis coexist in the same(CDS 2021),第八章 金融衍生产品法律制度,一、金融衍生产品简述,3.,案例,Merrill Lynch,Pierce Fenner&Smith Inc.v.Curran,The central question presented by these cases is whether a private party may maintain an action for damages caused by a violation of the CEA.,The United States Court of Appeals for the Sixth Circuit answered that question affirmatively,holding that an investor may maintain an action against his broker for violation of an antifraud provision of the CEA.,The Court of Appeals for the Second Circuit gave the same answer to the question in actions brought by investors claiming damages resulting from unlawful price manipulation that allegedly could have been prevented by the New York Mercantile Exchanges enforcement of its own rules.,第八章 金融衍生产品法律制度,一、金融衍生产品简述,3.案例,1The formation of the futeres trading market is necessary in that times.,The composition of the future trading market is the hedgers,the speculators,the floor brokers and the petitioners.,2Under the approach to the task of determining whether Congress intended to authorize a private cause of action has changed significantly,federal courts,following a common-law tradition,regarded the denial of a remedy as the exception rather than the rule.,As Justice Frankfurter explained:Our cases subsequent to Cort v.Ash have plainly stated that our focus must be on the intent of Congress.,Through the analysis of this case,the law and the legal precedent,the Justice Frankfurter hold that the court should focus on the intent of Congress.,第八章 金融衍生产品法律制度,一、金融衍生产品简述,3.案例,3In determining whether a private cause of action is implicit in a federal statutory scheme when the statute by its terms is silent on that issue,the initial focus must be on the state of the law at the time the legislation was enacted.,his Court,as did other federal courts and federal practitioners,simply assumed that the remedy was available.,4We should consider the intention of create the CET.Congress was,of course,familiar not only with the implied private remedy but also with the long history of federal regulation of commodity futures trading.From the enactment of the original federal legislation,Congress primarily has relied upon the exchanges to regulate the contract markets.,The inference that Congress intended to preserve the pre-existing remedy is compelling.,Conclusion,We hold that the private cause of action under the CEA that was previously available to investors survived the 1974 amendments,第八章 金融衍生产品法律制度,二、对金融衍生产品的监督,概说,体系：“三位一体政府部门 行业协会 交易所,1.中国对金融衍生产品的监管,监管重要主体：银监会、证监会,监督补充主体：行业自律性组织相关的行业协会 相关的交易平台,二、对金融衍生产品的监督,2.美国对金融衍生产品的监督,The most developed country the world and the most perfect law structure,Supervise System:商品期货交易委员会(CFTC)证券交易委员会SEC(two key elements),Self-Regulation Organizations(NFA),Boundary of the Supervise System:focous on the floor trading&nearly without limit in the over-the-counter,Ecps is the important part of the over-the-counter,信用违约互换(CDS)which is a type of the over-the-counter results in the 2021 crisis,Reform:The Wall Street reform and Consumer Protection Act 2021 July(focous on the OTC),二、对金融衍生产品的监督,3.案例,Greene County Bank v.Federal Deposit Insurance Corp,Facts-,Because the Greene County Bank violated the Memorandum of Understanding(MOU).The MOU requires the Bank to(1)develop written policies for addressing interest rate risk exposure and governing the use of futures to reduce interest rate risk and(2)provide detailed justification each time the Bank uses futures to reduce interest rate risk.So the FDIC initiated an administrative action against the Bank pursuant to 12 U.S.C.s 1818(b)on July 26,1993 by issuing a Notice of Charges and Hearing.Following a three-day hearing,an Administrative Law Judge(ALJ)recommended against the issuance of a cease and desist order.Upon review of the ALJs decision,the FDIC Board found failures of compliance that constituted violations of the Memorandum of Understanding(MOU)and the FDIC Policy Statement as well as unsafe and unsound practices.Through a series of procedures,the FDIC issued a cease and desist order requiring the Bank to comply with the MOU and FDIC Policy Statement in the end.,二、对金融衍生产品的监督,3.案例,Parties contentions-,Plaintiffs:,The Bank attacks the order as not supported by substantial evidence and as arbitrary and capricious.The Bank also argues that the FDIC applied an incorrect standard in determining