摘要
以账户体系为出发点最有助于界定融资融券业务担保物法律性质,对此理论界和实务界存在不同观点,核心问题在于对资金、证券"所有"与"占有"的界定存在争议。资金、证券账户体系都经历了由直接持有向间接持有、由自行保管向分散保管再向集中保管的演进,投资者对账户所享有的权利也发生了改变。但我国融资融券业务账户体系通过"担保账户+二级账户"的方式实现了资金、证券所有权与占有的分离,其担保法律关系的性质是最高额质押法律关系,担保物法律性质应界定为最高额质押物。
The perspective of account system is conductive in resolving the problem of the definition of legal nature of the guaranty in margin trading. As to this question, the scholars and practitioners respectively hold different views. The core argument behind various views is the definition of ＂ownership＂ and ＂possession＂ of securities and cash. The account systems of securities and cash both have experienced the development from the direct holding system to the indirect holding system as well as from the disperse custody to the centralized custody during which the right of investor to the account has fundamentally changed. However, the division of ＂ownership＂ and ＂possession＂ of securities and cash has achieved in account systems of margin trading in China by the use of the guaranty account and the ＂second-level account＂, from which we can make conclusion that the legal nature of the guaranty relationship can be defined as the maximum amount of pledge legal relationship and the guaranty as the object of maximum amount of pledge.
出处
《证券市场导报》
CSSCI
北大核心
2018年第6期60-70,共11页
Securities Market Herald
关键词
融资融券
担保物法律性质
最高额质押
margin trading
legal nature of the guaranty
maximum amount pledge
