Undeniably, the legal bottleneck that restricts the development of China futures market still exists. Reviewing relevant laws and regulations does not mean denying its positive role in the rectification process. As the futures law is still in the drafting and research stage, the current legal systems for regulating the domestic futures market mainly include the Provisional Regulations on the Administration of Futures Trading (hereinafter referred to as the Regulations), the Measures for the Administration of Futures Exchanges, the Measures for the Administration of Futures Brokerage Companies, the Measures for the Administration of Senior Managers' Qualifications of Futures Brokerage Companies and the Measures for the Administration of Employees' Qualifications of Futures Industry formulated by the State Council 1999. When discussing the revision of futures laws and regulations, we should not be divorced from the background of high-speed, blind and irregular operation of futures market at that time, and re-examine some provisions of the laws and regulations from the perspectives of rectification effect, market economy reform, risks brought about by China's entry into WTO, and the need for risk management. Undeniably, laws and regulations are obviously transitional, and some provisions are difficult to adapt to the changed market environment, which has not adapted to the requirements of the new stage of standardized development of the futures market, and even restricted the sustainable development of the futures industry. Today, we are thinking about the cleaning and revision of futures laws and regulations, which is precisely the "sublation" of history in the spirit of keeping pace with the times. "As a record of economic life, the legal system is always rooted in a certain economic life and lags behind the ever-changing economic life." (Marxism) Promoting economic growth through legal innovation has become a topic of special concern for countries ruled by law. The perfection of the legal system of futures market is only the epitome of the legal system lagging behind many practical needs. This paper intends to elaborate the perfection of China's futures legislation from the perspective of the development of futures market.
I. Three-level management system of futures market
Whether in Europe, America or Asian countries, the supervision of futures market is divided into three levels: the first level is the front-line supervision of exchanges. ..... The second level is the self-discipline management of futures associations. ..... The third level is the macro-management of the country. ……2
(A) the government's macro-control of the market. The relationship between government and market, as an old and often new topic in economics, has experienced two diametrically opposite ups and downs: state intervention and laissez-faire. Under the condition of market economy, what we are arguing about is not whether the state can intervene in the market, but what and how to intervene. As a late-developing country, we clearly realize that the reform of market economy calls for the establishment of limited government. Breaking the omnipotent power structure of the government and handing over microeconomic activities to the market for regulation are the first essence of "limited government"; Attach importance to the role of the government, but not let the government replace the market, but ask the state to provide a good social and legal environment in the broader sense of the stable operation of the market economy. The 15th National Congress of the Communist Party of China put forward that "the government advances and retreats, and does something but does nothing", which actually provides a good footnote for us to understand the resource allocation between the government and the market. It is worth noting that since the beginning of this year, the securities and futures regulatory authorities have clearly carried out the idea of "market-oriented reform", and clearly proposed to speed up the legislation of the futures market in accordance with the principle of marketization and adjust laws and policies in a timely manner to meet the needs of the standardized development of the futures market. From this point of view, marketization is conducive to the rational positioning of government functions and the clear reform focus of the regulatory authorities. five
Therefore, on the issue of the development of the futures market, on the one hand, it is necessary to strengthen the authority of the China Securities Regulatory Commission as a regulatory department to reduce the inefficiency caused by departmental coordination. Under the leadership of the State Council, the CSRC was given the decision-making power on the development of the futures market, and the marketization process was promoted through government system innovation, so that the focus of work changed from preventing and limiting the negative effects of the futures market to focusing on cultivating and guiding the market. On the other hand, if the primary goal of futures market management is to safeguard the interests of the public, then after the futures market is rectified and standardized, protecting the interests of investors becomes the primary goal of futures market management. Since the CSRC is located in the supervision department of the securities and futures market, not the competent department, and is determined to take the protection of investors' legitimate rights and interests as the top priority, and rise to an important height related to the existence, development premise and foundation of the futures market, the guiding ideology of protecting investors' legitimate rights and interests should also be given priority in futures legislation. In this regard, we can refer to the securities legislation, and the first article of the Regulation can be expressed as: This Regulation is formulated in order to regulate futures trading, protect the legitimate rights and interests of investors, safeguard the economic order and social interests of the futures market, and promote the development of the socialist market economy. After all, protecting the legitimate rights and interests of investors is the cornerstone of the futures market and the guarantee of its stability. The transfer of the order aims to show that the legitimate rights and interests of futures investors especially need superior protection.
(2) Self-discipline management of futures industry associations. The exercise of the government's extensive regulatory authority does not hinder the self-discipline function of the industry. "What needs to be deepened is that the supervision and self-discipline management of the association is an important supplement to government supervision, and its role is irreplaceable by the regulatory authorities." In the foreign futures market management system, industry self-management occupies an important position, mainly in the form of "association" or "Federation", focusing on industry autonomy, coordination and self-management. For example, the National Futures Association (NFA) is a self-management organization supported and participated by American futures industry and market users. It took six years from the preparation of China futures market on July 20th 1995 to the formal establishment of the futures association at the end of February 2000. The irregularity of futures market in this period is closely related to the lack of secondary self-discipline management system of the association. Although the futures association has been established, there are still gaps in legislation, and its legal status needs to be affirmed urgently; In addition, in order to strengthen the role of the association, it is suggested that in addition to the existing eight responsibilities and powers, it should be given the following powers: ① to propose a revised plan for the new rules of futures trading management and request the government to approve its implementation; (2) Have the right to request financial supervision and business supervision of members; (3) Based on the particularity of the futures industry and referring to international practices, explore the revision of the arbitration law and give the association independent arbitration rights. eight
(3) Front-line supervision of futures exchanges. "The restriction of business ethics on people is fundamentally the restriction of long-term market interests on people". The front-line supervision of futures exchange is the soul of futures market management. The daily self-management of the exchange is mainly carried out through articles of association, rules and measures. For example, the Chicago Mercantile Exchange has as many as 33 14 rules, and 10 seems cumbersome but effectively maintains the survival of the futures market. Judging from the current regulations of China's futures exchanges, we need to improve our self-management ability from the following aspects: ① The development of network technology, the opportunity of economic globalization, the liberalization of investment activities and other changes in the external environment have made the monopoly market and the foundation of non-automation of transactions faced by traditional membership exchanges no longer exist, and companies have become the choice of more and more exchanges. 1 1 although the futures exchange has long been regarded as an enterprise, it has been restricted by non-profit, which has seriously weakened the internal motivation of enterprises to upgrade their technical means and improve their service quality. Therefore, it is necessary to redefine the futures exchange, on the basis of establishing a real membership system, clarify the profitability of the exchange when conditions are ripe, accelerate the pace of shareholding system reform, and choose listing financing in time to meet the challenges brought by global financial integration. 12 at the same time, the core position of the futures exchange in market supervision needs to be further improved, and it can be compared with the stock exchange, giving it wider supervision power and camera processing authority. ② From the point of view of settlement system, it is urgent to introduce a unified settlement system that conforms to the development trend of futures market. A complete and effective risk sharing mechanism depends on the establishment of settlement companies and guarantee companies independent of the exchange (or combined into one), forming a triangular balance model among the exchange, settlement companies and members, so that they can undertake the functions of settlement, risk management and performance guarantee. ③ According to the actual situation and development needs, timely divide the members of the exchange into settlement members and non-settlement members to improve the risk sharing level. In terms of the criteria for accepting and approving settlement members, the basic situation of members with good reputation, abundant capital, sound organization and excellent business performance is comprehensively investigated, and the deposit is paid to the settlement institution in accordance with the provisions of the settlement deposit system. By implementing the settlement membership system, the exchange directly controls the trading risks of many members, and only controls and settles the funds of a few members, which not only reduces the operating risks of the trading system, but also effectively improves the efficiency of the trading system, strengthens market supervision, prevents irregularities and ensures the healthy operation of the futures market. 13 the simple division of brokerage members and non-brokerage members of futures exchanges in article 8 of the regulations needs to be improved.