《金融法的概念与调整对象（The concept and adjustment object of Financial Law）.doc》由会员分享，可在线阅读，更多相关《金融法的概念与调整对象（The concept and adjustment object of Financial Law）.doc（12页珍藏版）》请在三一文库上搜索。
1、金融法的概念与调整对象（The concept and adjustment object of Financial Law）First, the concept of Financial LawThe financial law is a general term of the legal norms regulating financial relations. Specifically, it is a general term for regulating the legal norms of various social relations occurring in the circ
2、ulation of money and capital credit activities.From the point of view of jurisprudence, financial law is divided into broad sense and narrow sense. The narrow sense of Financial Law refers to the normative documents relating to the financial aspects, which is enacted or approved by the state organs
3、of power in accordance with statutory powers and procedures, and is enforced by the state force, that is, financial laws. The generalized financial law not only refers to financial laws, including the financial aspects of the normative documents of administrative organs of the states financial regul
4、ations and financial regulations, the financial aspects of the normative documents formulated the national judicial organs according to the relevant judicial interpretation of financial, financial aspects of normative documents formulated and local state organs according to law the local financial r
5、egulations.From the scope of the adjustment of financial relations, the financial law also has broad and narrow sense. As the financial activities are mainly achieved through various banking operations, banking law is the basic law of the financial law, and is in the central position. Therefore, the
6、 narrow sense of Financial Law refers to the banking law. In addition to the banking law, the broad sense of financial law includes monetary, securities, bills, trust and insurance laws, and so on.Financial law is the basic behavior norm of financial activities. It is the basic means and basic metho
7、d for the state to lead, organize and manage the financial undertaking and guarantee the financial order.Two, the object of adjustment of the financial lawThe object of adjustment of Financial Law refers to the social relations among various subjects in financial activities, that is, financial relat
8、ions. The financial relations here do not include the fiscal allocation of funds, and the fiscal distribution relationship is adjusted by the financial and tax laws.Under the condition of modern market economy, the financial activities are both the supply and demand of the fund, which are carried ou
9、t on the financial market with credit. Because of the indirect finance and direct finance of finance, financial relations can be represented as indirect financial relation, direct financial relation and financial intermediary service relation related to these two kinds of relations. At the same time
10、, modern market economy is the moderate government intervention (or control) of the market economy, therefore, the relationship between financial regulation and supervision of state formed in the regulation and supervision of the financial industry, also should be the adjustment object of financial
11、law. Moreover, because the financing of funds should be based on the issuance and circulation of money, the social relations formed in the issuance and circulation of money and its management should also be an integral part of the object of financial regulation. In a word, the financial relation, as
12、 the object of financial law adjustment, refers to the social relations among the subjects in the currency circulation and the credit financing activities.Specifically, financial relations should refer to five kinds of social relations, namely between the indirect financial relationship between fina
13、ncial sector related subjects of direct financial relationships, financial intermediation services, national financial authorities and various financial institutions, financial institutions and the nature of financial regulation and supervision relationship. The first three kinds of relations all oc
14、cur in the transaction activities between equal subjects and financial markets, so they are also called financial transaction relations. The latter two kinds of relations take place in the national financial authorities to regulate, control and supervise the financial transaction activities of the p
15、arties in the financial market, so called financial regulation and supervision relations.(I) indirect financial relationsIndirect financial relationships with financial institutions as the dominant currency to the market as the foundation, mainly for corporate, commercial banks and other financial i
16、nstitutions for non financial institutions, natural persons and other social organizations to take deposits and make loans relationship. Include：1, the deposit relationship and savings relationship between financial institutions and non financial institutions and natural persons due to deposits and
17、savings.2, financial institutions and non-financial institutions and natural persons due to credit loans, guarantees (including guarantees, mortgages, mortgages), loans and discount loans arising from the loan relationship.3. Interbank funds relations arising from interbank lending, bills discountin
18、g, exchange settlement, securities trading, foreign exchange trading and other activities between financial institutions.This kind of relation is also called monetary and financial relation in the field of its occurrence. In terms of its legal nature, it should be the relation of creditors right and
19、 debt between the parties. Therefore, the commercial banks law, the deposit law, the savings law, the credit law, the guarantee law and the dismantling law should be adjusted.(two) direct financial relationsThe direct financial relationship is based on the capital market, mainly for financing compan
20、ies and countries and investors, fund companies and enterprises and other social organizations and individuals of securities issuance and trading relationship and property transaction relationship.1, the issue of securities relations. Here mainly refers to the securities issuing market (that is, the
21、 primary market), securities issuers and investors because of bonds, stocks, investment funds, bonds and other securities issued by the trading relationship, the relationship between investment income.2, securities trading relations. Here mainly refers to the Securities Trading (ie the two market) m
22、arket, securities holders and investors because of the sale of stocks, bonds and other forms of securities trading, trading relations and derivatives of the acquisition of shares of listed companies.3, property rights trading relations. Here is in the property rights trading market, that is, non sec
23、uritization of the capital market, investors, investors, investors, shares, shares transfer, acquisitions, mergers and other relations.This kind of relation can be called capital market finance relation in terms of its field of occurrence. In terms of its legal nature, it should be the investment in
24、come relationship among all parties. This requires the development of special securities issuance law, securities exchange law, takeover law of listed companies, merger and Acquisition Law, social investment law and property right exchange law.(three) financial intermediary service relationship;Fina
25、ncial intermediation services refers to banks, securities companies and other financial institutions in the financial markets (including money market and capital market), to provide for the financing of both financial payment settlement, underwriting, brokerage and other ancillary services consultin
26、g agency. In these activities, the financial institutions are not the direct parties of the financing, but only provide supplementary services for the investment and financing parties and charge intermediary services. Therefore, such relations are called intermediary service relations. Mainly includ
27、e:1, the intermediary service relationship in the money market. Mainly the settlement of funds, liquidation, consulting agents, trust entrusted, financial leasing, security, witness and so on. Here is mainly based on the scope of the intermediary business for the community to provide the size, type
28、and number of identified.2, the intermediary service relationship of capital market includes the relation of securities issuing service, securities trading service and property right transaction service. Mainly securities underwriting and brokerage, securities registration, trusteeship and liquidati
29、on, securities investment advisory and financial audit, asset evaluation and legal authentication and other service relationships. The service relationship here mainly occurs between the securities dealers and intermediaries and between the investment and financing parties.This kind of relation need
30、s to be made up, such as the algorithm, the trust law, the lease law, the securities institution and the securities business law, the economic attestation service law and so on.(four) the relationship between financial regulation and controlFinancial control is the basic means of macroeconomic regul
31、ation and control by the state, and is one of the basic functions of Finance under the modern market economy. The relationship between financial regulation and control refers to the relationship between the state and its authorized financial authorities in order to stabilize the value of the currenc
32、y and promote economic growth, and to adjust and control the relevant financial variables. The financial regulation is guided by the monetary policy formulated and implemented by the central bank, and indirectly regulates the financial market by adjusting the index of the money supply and the market
33、 interest rate. Of course, direct control will also be used to control at certain times. Therefore, the relationship between financial regulation and control has both the equal nature of financial market transactions and the unequal nature of financial supervision.The above financial control relatio
34、ns need to be formulated, such as the central bank law and the currency reform law.(five) financial supervision relationship;The relationship of financial supervision is the relationship between the state and its authorized financial supervision organs, which supervise the financial institutions, fi
35、nancial services and financial markets. Include：1, the financial institutions of the main qualifications, regulatory relationship. Mainly refers to the national financial authorities on the establishment of banks and non bank financial institutions, changes, take over and terminate the process of ap
36、proval of the formation of relations.2, the financial institutions of business behavior, regulatory relationship. Mainly refers to the national financial authorities to establish basic rules for the business activities of various financial institutions, and supervise the formation of relations in th
37、e implementation. It includes deposit loan supervision, payment and settlement supervision, trust, Commission supervision, insurance supervision, securities issuance, securities trading and service supervision and so on.3, the regulatory relationship to the financial market. Mainly refers to the reg
38、ulatory authorities of the money market, capital market, insurance market, gold market and the foreign exchange market to the establishment, alteration and termination of business and supervision of the varieties of the relationship, at the same time, should also include the relationship between the
39、 financial supervision authority of financial institutions, set up unauthorized unauthorized issuance of securities, engaging in illegal financial activities of illegal deposits, loans, insurance, mortgage, leasing business in the investigation form.Such relationships need to be regulated by the fin
40、ancial regulatory act.Three, the status of Financial Law(1) the meaning of the status of the financial lawThe position of Financial Law refers to the position of the financial law in the whole legal system, that is, whether the financial law belongs to an independent legal department in the legal sy
41、stem and to what level of legal department it belongs to.In our country, the constitution is the fundamental law of the state, belonging to the legal department of the first level; according to the constitution of the legal department of civil law, administrative law, economic law, criminal law and
42、other law belong to the second level, according to the legal department normative documents formulated the basic law belong to the third level, the financial law is an important part of the economic law. The legal department belongs to the third level, plays an important role and has an indispensabl
43、e role in the whole legal system in china. As mentioned earlier, the financial law is to adjust the relationship between financing, direct financing and indirect financing, the relationship between relations, financial services and financial supervision is the relationship between civil law and comm
44、ercial law and administrative law are not adjusted, therefore, financial law has its own unique object, according to the jurisprudence of common sense, a distinction a law is not an independent legal department is to see whether the adjustment object, their sum up, financial law is an independent le
45、gal department.(two) the relationship between the financial law and other legal departments1, the relationship between financial law and civil lawCivil law is the basic law regulating property relations and personal relations between equal subjects. The basic principles of civil law should be applie
46、d to the financial transaction relationship between equal subjects in the adjustment of financial law, but the specific relationship between financial transactions and financial regulation and financial supervision is not regulated by civil law.2, financial law and Commercial LawCommercial law is a
47、general term of the legal norms that regulate the commercial subject to engage in commercial activities and cause commodity economic relations. The nature of financial relations regulated by the financial law, including civil relations and commercial relations, as well as economic regulation and man
48、agement relations. On the commercial credit financing bills, stocks and bonds and other legal norms and financial law in the competition, but the financial law financial relations in civil relations, economic regulation relationship is clearly not the adjustment of commercial law.3, financial law an
49、d administrative lawAdministrative law is a general term of the legal norms regulating the relationship between State Administration and management. The relations of control in the financial law should be of the nature of administrative relations, so the basic principles and basic rules of administrative law should be applied. But the administrative law obviously can not adjust the financial transaction relat