期货交易中的强行平仓问题研究
发布时间：2019-01-06 19:57
【摘要】：在期货交易中,强行平仓是控制风险的重要措施之一,也是期货交易有序进行的重要保障。但在期货交易的实践活动中,强行平仓可能不仅没有起到控制风险、减少持仓者损失的作用,而且会成为引起纠纷、侵犯持仓者权利的罪魁祸首。所以应该制定详细、明确的规定来做为期货交易所或期货公司执行强行平仓的向导,将期货交易所和期货公司的强行平仓行为约束在合法、公正的范围内。当前,我国正是缺少一部专门的法律来对期货交易中的相关事项作出统一的规定,而其它的法律、法规之间对许多问题的规定或者是不详细的,或者是互相矛盾的,不能作为执行强行平仓的可靠依据,所以在执行强行平仓时就容易引起争议。强行平仓的法律性质问题对强行平仓的执行程序、责任分配等方面具有重要影响,但现有的各项法律文件中并没有对强行平仓的法律性质做出明确、统一的规定,而学术界对此也有权利说、义务说、权利义务说和权利转义务说四种主要观点,这就导致强行平仓的实施者与被强行平仓的持仓者可能会因分别持不同的观点而产生纠纷,而各个法院也可能基于不同的观点做出截然不同的判决,这就导致强行平仓制度作为控制风险的重要措施,却反而诱发了更多的风险。本文首先根据现有的规定和学说对强行平仓的性质进行分析,再根据具体的案例对实践中出现争议较多的事项进行简要分析,最终寻求出解决纠纷的最佳方案。
[Abstract]:In futures trading, forced liquidation is one of the important measures to control risks, and it is also an important guarantee for the orderly conduct of futures trading. However, in the practice of futures trading, the forced closing of positions may not only not play a role in controlling risks and reducing the losses of holders, but also will become the chief culprit of disputes and infringements on the rights of holders. Therefore, detailed and clear regulations should be made to guide futures exchanges or futures companies to enforce forced closure of positions, and to restrict the forced liquidation of futures exchanges and futures companies within the scope of legality and justice. At present, China lacks a special law to make uniform provisions on the related matters in futures trading, while other laws and regulations on many issues are either not detailed or contradictory. Cannot be used as a reliable basis for the enforcement of forced closure, so the execution of forced closure is prone to controversy. The legal nature of forced closure has an important impact on the implementation procedure and distribution of responsibility, but there are no clear and unified provisions on the legal nature of forced closing in the existing legal documents. The academic community also has the right to say, obligation theory, right and obligation theory and right to duty theory four main views, which leads to forced closure of the position of the implementer and the forced position holders may have different views and produce disputes. Different courts may make different judgments on the basis of different viewpoints, which leads to the forced closure of positions as an important measure to control risks, but it leads to more risks. This paper firstly analyzes the nature of forced closure according to the existing regulations and doctrines, and then briefly analyzes the controversial issues in practice according to specific cases, and finally finds out the best solution to the dispute.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.28
本文编号：2403256
[Abstract]:In futures trading, forced liquidation is one of the important measures to control risks, and it is also an important guarantee for the orderly conduct of futures trading. However, in the practice of futures trading, the forced closing of positions may not only not play a role in controlling risks and reducing the losses of holders, but also will become the chief culprit of disputes and infringements on the rights of holders. Therefore, detailed and clear regulations should be made to guide futures exchanges or futures companies to enforce forced closure of positions, and to restrict the forced liquidation of futures exchanges and futures companies within the scope of legality and justice. At present, China lacks a special law to make uniform provisions on the related matters in futures trading, while other laws and regulations on many issues are either not detailed or contradictory. Cannot be used as a reliable basis for the enforcement of forced closure, so the execution of forced closure is prone to controversy. The legal nature of forced closure has an important impact on the implementation procedure and distribution of responsibility, but there are no clear and unified provisions on the legal nature of forced closing in the existing legal documents. The academic community also has the right to say, obligation theory, right and obligation theory and right to duty theory four main views, which leads to forced closure of the position of the implementer and the forced position holders may have different views and produce disputes. Different courts may make different judgments on the basis of different viewpoints, which leads to the forced closure of positions as an important measure to control risks, but it leads to more risks. This paper firstly analyzes the nature of forced closure according to the existing regulations and doctrines, and then briefly analyzes the controversial issues in practice according to specific cases, and finally finds out the best solution to the dispute.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.28
【参考文献】
相关期刊论文 前2条
1 刘敏;期货透支交易及其法律责任的认定[J];法律适用;2003年10期
2 谭婧华;;个股期权强行平仓实施方式及其法律后果探讨[J];证券法苑;2013年02期
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