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融资融券担保制度的具体构造主要有两大路径:担保法路径和信托法路径。担保法路径又包括让与担保说、最高额质押说等。让与担保说和最高额质押说都各具优点,但也都存有不可克服的缺陷:事实上的流质、偏重保护证券公司的利益、偏离审懊监管的立法初衷等。回归融资融券担保制度的信托构造是理性的选择。因为融资融券担保制度信托构造的理论缺陷并非无法克服,坚持信托构造也顺应了中国立法现实的规律,而且以银行(证券登记结算公司)为委托人、证券公司为受托人和投资者为受益人的信托构造也能阐释已有的司法实践。
The specific structure of the margin financing security system has two main routes: the guarantee law and the trust law. Security Act also includes the law and guarantee that the maximum amount of pledges and so on. Both the guarantee of guarantee and the maximum amount of pledge have their own advantages, but all have their own insurmountable shortcomings: the fact that the liquidity is biased, the interests of the securities companies are taken seriously, and the legislations deviate from the supervision of the regulatory regime. Regression to the trust structure of margin financing is a rational choice. Because the theoretical defects of the trust structure of margin financing and securities lending are not insurmountable, the construction of the trust also conforms to the reality of the Chinese legislation, and the beneficiaries are the banks (securities registration and clearing companies) and the securities companies as trustees and investors Human trust structure can also explain the existing judicial practice.