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资本市场创新需要发挥法律的引导功能,当下以市场存量为基础的创新活动更是呼唤新型商事担保制度的确立。现行《物权法》中的权利质押制度虽具民事领域的正当性,但在商事领域局限性则至为明显,难以满足商事实践的需要,实务中也是屡遭突破。反观《日内瓦证券公约》,设专章对证券担保交易作出规定,有关担保的类型、权利实现、担保品的利用、担保品价值维持和替换都作出了明确规定,这些给我国资本市场创新的立法和实践提供了良好的制度范本。在目前立法尚难以立即上马的背景下,部门规章、司法解释、业务规则等其他层级的规范可以先行创设相关的商事担保制度。
The capital market innovation needs to give play to the guiding function of the law. The innovation activities based on the market stock nowadays call for the establishment of a new commercial guarantee system. Although the system of right pledge in the current “Property Law” has the legitimacy in the civil field, the limitation in the commercial field is obvious and it is difficult to meet the need of commercial practice. On the other hand, the “Geneva Convention on Securities,” set a special chapter on securities guarantees transactions, the type of security, the realization of rights, the use of collateral, collateral value to maintain and replace have made clear that these give our capital market innovation legislation And practice provides a good model of the system. Under the current circumstances in which it is difficult to immediately launch the legislation, other levels of regulation, such as departmental rules, judicial interpretations, and business rules, can first establish relevant commercial guarantee systems.