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习惯适用传统民商法规定的法院在面对新型金融案件时会产生路径依赖,不仅在实体法适用方面,在证据规则的适用方面,路径依赖现象也十分明显。金融衍生产品交易纠纷案件不同于普通民商案件,运用传统民事证据规则裁判案件使得裁判结果偏离公证。因此,有必要明晰金融衍生产品的特别属性,重塑金融衍生产品交易纠纷案件的证据规则,结合民事诉讼证据规则原理,为公证裁判金融衍生产品案件提供制度支持,变路径依赖为路径创造。
The courts accustomed to applying the traditional civil and commercial laws will have a path dependence in the face of new types of financial cases. The path dependence is not only obvious in the application of substantive law but also in the application of evidence rules. Disputes over financial derivatives transactions are different from those of ordinary civil and commercial cases. The use of the rules of traditional civil evidences to adjudicate cases leads to the deviation of the results of referees from notarization. Therefore, it is necessary to clarify the special attributes of financial derivative products, reshape the evidence rules of financial derivative product transaction disputes cases, and combine with the rules of evidence evidence of civil litigation, provide institutional support for notarized arbitration financial derivatives cases and change path dependence for path creation.