金融法(双语)第八章 金融衍生产品法律制度

第八章 金融衍生产品法律制度
一、金融衍生产品简述 3.案例
Merrill Lynch, Pierce Fenner & Smith Inc. v. Curran The central question presented by these cases is whether a private party may maintain an action for damages caused by a violation of the CEA. The United States Court of Appeals for the Sixth Circuit answered that question affirmatively, holding that an investor may maintain an action against his broker for violation of an antifraud provision of the CEA. The Court of Appeals for the Second Circuit gave the same answer to the question in actions brought by investors claiming damages resulting from unlawful price manipulation that allegedly could have been prevented by the New York Mercantile Exchange's enforcement of its own rules.
第八章 金融衍生产品法律制度
一、金融衍生产品简述
2.美国的金融衍生产品 Definition: a type of financial compact ； Amercia is the resource and the leader of the Financial derivatives(1972) Present situation: Profit and crisis coexist in the same(CDS 2008)
金融衍生产品的交易可分为场内交易和场外交易。
地位：金融衍生产品是全球金融创新的浪潮中涌现出的高科技产品， 是金融创新工具的重要组成部分。
第八章 金融衍生产品法律制度
一、金融衍生产品简述
1.中国的金融衍生产品 定义：金融合约 发展特点：起步晚，发展快 现状：场内交易中产品单一，且交易限制较多；场外交易中产品 品种丰富，交易的限制较少 对策：借鉴经验和教训，坚持推动金融衍生产品市场的规范发展
第八章 金融衍生产品法律制度
一、金融衍生产品简述 3.案例
（1）The formation of the futeres trading market is necessary in that times. The composition of the future trading market is the hedgers,the speculators,the floor brokers and the petitioners. （2）Under the approach to the task of determining whether Congress intended to authorize a private cause of action has changed significantly, federal courts, following a common-law tradition, regarded the denial of a remedy as the exception rather than the rule. As Justice Frankfurter explained:Our cases subsequent to Cort v. Ash have plainly stated that our focus must be on "the intent of Congress." Through the analysis of this case, the law and the legal precedent, the Justice Frankfurter hold that the court should focus on the intent of Congress.
金融法（双语）第八章 金融衍生产品法律制度
第八章 金融衍生产品法律制度
一、金融衍生产品简述
定义：金融衍生产品（Derivative）是与金融相关的派生物，通常是指 其价值依赖于基础资产(underlying assets)价值变动的合约(contracts)。
种类：主要包括远期、期货、互换、期权以及它们与其他金融工具经 分解组合形成的混合金融产品。
Hale Waihona Puke 第八章 金融衍生产品法律制度
一、金融衍生产品简述 3.案例
（3）In determining whether a private cause of action is implicit in a federal statutory scheme when the statute by its terms is silent on that issue, the initial focus must be on the state of the law at the time the legislation was enacted. his Court, as did other federal courts and federal practitioners, simply assumed that the remedy was available. （4）We should consider the intention of create the CET. Congress was, of course, familiar not only with the implied private remedy but also with the long history of federal regulation of commodity futures trading. From the enactment of the original federal legislation, Congress primarily has relied upon the exchanges to regulate the contract markets. The inference that Congress intended to preserve the pre-existing remedy is compelling. Conclusion We hold that the private cause of action under the CEA that was previously available to investors survived the 1974 amendments