At present, futures legislation has been in full swing, among which the delivery responsibility in physical delivery of commodity futures has attracted much attention from all parties because it involves the design of delivery methods in futures market and the vital rights and interests of standard warehouse receipt holders, delivery warehouses, futures exchanges and many other market entities.

Paragraph 1 of Article 47 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Futures Disputes stipulates: "The delivery warehouse fails to deliver the goods that meet the requirements of the futures contract to the standard warehouse receipt holder within the time limit stipulated by the trading rules of the futures exchange, and the standard warehouse receipt holder suffers losses, the delivery warehouse shall bear the responsibility, and the futures exchange shall bear joint liability." Judging from the current laws and regulations in China's futures field, only this article stipulates the joint liability of the futures exchange in the form of judicial interpretation when the delivery warehouse defaults.

At present, China's current laws and regulations stipulate that there are three main ways for two or more responsible persons to bear the liability for compensation: joint liability, joint liability and supplementary liability. Among these three ways, joint liability is the most serious one, and the creditor can choose any one of several debtors in the joint debt relationship and ask him to bear all civil liabilities. According to the relevant provisions of China's current laws and regulations, there are only two cases of joint liability, one is the joint liability voluntarily undertaken by the guarantor of joint liability, and the other is the legal joint liability with tort. The joint liability of the guarantor of joint liability refers to the joint liability that the creditor requires the guarantor of joint liability to bear when the debtor fails to perform the debt at the expiration of the debt performance period stipulated in the main contract. * * * Joint liability for infringement refers to the joint liability arising from the damage caused by the * * * infringer. The assumption of joint and several liability must be based on the clear provisions of the law or the clear agreement between the parties.

Under the circumstance that the default delivery of the delivery warehouse causes losses to the holders of standard warehouse receipts, does the futures exchange bear joint and several liability or tort liability for the guarantor?

In the delivery process, the relationship between the standard warehouse receipt holder and the delivery warehouse is based on the standard warehouse receipt, and the futures exchange is not the main body of the warehouse contract. In addition, there is no contractual relationship of joint and several liability guarantee between the futures exchange and the standard warehouse receipt holders, so the futures exchange should not be listed as a joint and several liability guarantor. Therefore, for the breach of the delivery warehouse, it is impossible for the futures exchange to bear joint and several liability for compensation because of the guarantor of joint and several liability. This negates the first legal reason of joint and several liability. Moreover, the standard warehouse receipt holder requires delivery to the delivery warehouse, which is not a typical futures delivery. The physical delivery of futures contracts is completed when the buyer pays for the warehouse receipt and the seller receives the payment for the warehouse receipt. The process of standard warehouse receipt holder taking delivery of goods by warehouse receipt is essentially that the delivery warehouse fulfills the warehouse contract. There is no legal basis for the delivery warehouse to breach the contract during the performance of the contract, but the futures exchange without any contractual obligations and guarantee obligations is required to bear joint liability as a guarantor.

Then, does the futures exchange's liability for breach of contract delivery to the delivery warehouse belong to tort joint liability? China's Tort Liability Law stipulates several cases that should bear joint tort liability, and the futures exchange's responsibility for the delivery warehouse's default delivery does not belong to it.

It can be seen that the judicial interpretation stipulates that the delivery warehouse cannot deliver the goods that meet the requirements of the futures contract to the standard warehouse receipt holder within the time limit stipulated by the trading rules of the futures exchange, which causes the loss of the standard warehouse receipt holder, and it is inappropriate for the futures exchange to bear joint liability. This improper practice increases the responsibility of the futures exchange.

Does the futures exchange need not bear any responsibility when the delivery warehouse defaults? The answer is also negative. According to the second paragraph of Article 36 of the Regulations on the Administration of Futures Trading, the delivery warehouse shall be designated by the futures exchange, and the futures exchange shall sign an agreement with the delivery warehouse to clarify the rights and obligations of both parties. Although the futures exchange and the delivery warehouse are equal civil and commercial subjects linked by contract, the futures exchange has a duty of care in the selection of the delivery warehouse, and the futures exchange should carefully choose the cooperative delivery warehouse according to law and perform its self-discipline duties diligently. If the default delivery of the delivery warehouse designated by the futures exchange causes losses to the holders of standard warehouse receipts, and there is evidence to prove that the futures exchange is at fault in the process of performing the responsibility of selecting delivery warehouses and self-discipline, the author thinks that in this case, it is more appropriate for the default delivery warehouse to bear the liability for compensation first, and then the futures exchange to bear the corresponding supplementary liability for compensation.

To sum up, in the legislation of futures law, we can consider modifying the joint liability of futures exchange as supplementary liability when the delivery warehouse defaults, in order to conform to the development of the current futures market.