我国外汇保证金交易法律制度构建初探

外汇保证金产品属于金融衍生品,国际上外汇保证金交易是非常普遍的交易形式。因投资者风险较大、法律法规缺失、监管缺位,2008年6月我国外汇保证金交易第二次紧急叫停,但境外交易经纪商在我国境内设立的分支机构仍然从事着外汇保证金＂经纪业务＂,国内投资者的风险有增无减。首要的法律问题是界定外汇保证金产品与证券、期货、外汇的异同,辨析外汇保证金的法律属性。风险隔离机制主要应考虑资金安全和破产风险。在监管体系方面,我国应加快金融统一监管体系的构建。

Exploration on Establishment of the Legal System in Foreign Exchange Margin Trading in China

Foreign Exchange Margin is one of the financial derivations. In global, foreign exchange margin trading is a very popular trading business. But in June 2008 China government has stopped this business for the second time, as it lacks related law regulations and short of supervising, therefore, results in high risk for the investors. But some branches set up in China still undergo this kind of business called "broker business", therefore, the risks for domestic investors are still increasing. The main legal issue is to determine the similarities and differences between foreign exchange margin products and stock, futurer, foreign currencies, so that we can define its law category. Risk separating system should mainly take capital safety and bankruptcy risk into consideration. In supervising system, we should step up the construction of unifying national supervising system.