Keywords: financial swap legal relationship structure
The legal relationship of financial swap transaction is a specific social relationship in the form of rights and obligations between transaction subjects according to the legal norms of financial swap. The legal relationship of swap transactions is essentially the legal rights and obligations between swap traders, and it is the criterion for swap transactions between swap traders. The structure of financial swap transaction legal relationship refers to the form, content and organizational structure of financial swap legal relationship, that is to say, which sub-legal relationships it mainly includes and what kind of structural relationships are among these sub-relationships.
The legal relationship of financial swap transaction consists of several legal relationships in form; As an integral part, these multiple legal relations are sub-parts of the legal relations of financial swaps. According to the different contact methods, these sub-legal relations can be further divided into core legal relations and indemnificatory legal relations.
The core legal relationship of financial swap transactions
The core legal relationship of financial swap (hereinafter referred to as "core legal relationship") refers to the inherent legal relationship of financial swap itself. According to the standard of time sequence, it can be divided into three parts: the legal relationship expressed by the initial principal exchange, which is called "initial legal relationship" or "legal relationship of principal exchange" in this paper; The legal relationship between temporary determination and performance of continuous payment obligations is called "temporary legal relationship" or "continuous payment legal relationship" in this paper. The legal relationship expressed by the final principal exchange is called "final legal relationship" or "principal exchange legal relationship" in this paper. The legal relations of these three sub-parts are combined to form the core legal relations. The embryonic form of financial swap is parallel loan, which consists of three independent trading relationships. Through evolution and development, parallel loans have produced a unique transaction form-financial swap. Later, after further evolution, financial swaps developed into various types. Nevertheless, the financial swap still retains the original formal characteristics composed of multiple sub-parts of the trading relationship.
Although the core legal relationship is a complex of several sub-legal relationships in form, we can never dismember it into several independent legal relationships in trading practice, because the core legal relationship is essentially a single legal relationship. The complexity of several sub-legal relationships only refers to their appearance characteristics. In essence, every so-called sub-legal relationship has completely lost its original independence, but only exists as an indispensable sub-part in financial swap transactions. Once the core legal relationship of financial swap is divided into independent sub-legal relationships, it will no longer become a financial swap transaction, but will deteriorate into other types of transactions.
Therefore, the three types of sub-legal relationships in the core legal relationship cannot be regarded as three independent transactions, they are only the concrete manifestations of the core legal relationship at different stages, and they are not really independent. Therefore, in legal practice, we can't analyze it, nor can we legislate or judge it separately, otherwise we will lose the conditions and foundation for the normal development of financial swaps.
Maintain the legal relationship of financial swap transactions
As far as the concept of financial swap legal relationship is concerned, which combines the indemnificatory legal relationship with the core legal relationship, the two sub-legal relationships as components have also lost their original independence, but only exist as components of a brand-new single legal relationship. In the current practice, the institutional resources in contract law are used to combine them in the form of a single agreement. That is to say, the legal relationship of financial swap, including indemnificatory legal relationship and core legal relationship, is a single contractual relationship, in which the specific swap transaction and credit support arrangement are only a sub-content of this single contract, and violation of any sub-content constitutes a violation of the entire legal relationship of financial swap. Therefore, for this single agreement in practice, we can't study and judge the indemnificatory legal relationship and the core legal relationship separately. In practice, the concept of legal relationship of financial swap forcibly superimposes two completely different legal relationships, which is artificial. Due to the insufficient supply of the current legal system of financial swap, it is the product of mutual compromise between the practice of financial swap and the current legal system. This artificial fiction and compromise may not be fully supported by the law, and its legal consequences are quite uncertain. The singularity of its original design intention is always faced with the negative evaluation of existing laws, so it is often difficult to achieve.
The indemnificatory legal relationship of financial swap (hereinafter referred to as "indemnificatory legal relationship") refers to the subsidiary legal relationship that ensures the smooth realization of financial swap's own transaction, mainly referring to various legal relationships of credit support arrangement. At present, any financial swap transaction reached by both parties includes credit support arrangement, and the specific social relationship embodied in this credit support arrangement is the indemnificatory legal relationship of financial swap, and the indemnificatory legal relationship is essentially various guarantee legal relationships. At present, the commonly used guarantee methods are mainly the Annex on Credit Support under New York Law and the Annex on Credit Support under British Law. The specific forms include pledge, mortgage, deposit and other qualified credit support. In the indemnificatory legal relationship of financial swap, the provision of credit support is always two-way, that is, both parties to the transaction always provide qualified credit support to the other party to ensure the realization of the other party's rights.
Safeguard legal relationship is not the inherent legal relationship of financial swap, but a legal relationship that is relatively independent of the core legal relationship and attached to financial swap transactions. Theoretically speaking, only the core legal relationship can constitute a complete financial swap transaction, so the indemnificatory legal relationship is not an inevitable part of the financial swap legal relationship. However, in current practice, due to the great risk of default in financial swaps, in order to ensure the smooth realization of the core legal relationship, almost all financial swaps are attached with a safeguard legal relationship, and in legal arrangements, this safeguard legal relationship and the core legal relationship are artificially superimposed and planned as an integrated legal relationship. For example, the International Swaps and Derivatives Association (ISDA), the maker of international practices for financial derivatives trading, has strictly integrated the core legal relationship with the safeguard legal relationship since the establishment of legal documents, and countries have followed suit. In 2007, two sets of master agreements on financial derivatives trading issued by China also adhered to the principle of integration. The important feature of the principle of unity lies in the violation of the indemnificatory legal relationship and the core legal relationship, and vice versa. Financial swap transactions must strictly grasp the characteristics of integration, otherwise it may bring adverse legal consequences.
The relationship between the legal relationship of financial swap transaction and the basic legal relationship
The relationship between basic legal relationship and financial swap legal relationship
The basic legal relationship is the legal relationship shown by the basic exchange as the basis of financial swap transactions, such as bond issuance, lending, stock trading, commodity trading and other legal relationships. The relationship between basic legal relationship and financial swap legal relationship is very close and unified; The former is the foundation of the latter, and the latter is the continuation of the former in a specific sense, realizing the specific ultimate goal of the former. It can be seen that the legal relationship and basic legal relationship of financial swaps are unified with each other, and they are often inseparable from the economic level.
(2) The differences between the basic legal relationship and the financial swap legal relationship and the reasons.
The legal relationship of financial swap and the basic legal relationship are independent of each other for the following reasons:
The legal relationship between them is different in nature, because they are different in the subject of transaction, the content of rights and obligations and the forms of expression.
The basic legal relationship is not necessarily included in the agreement of the subject of financial swap legal relationship. When dealing with each other, the subjects of financial swap legal relationship generally do not explore the existence, time, category and specific content of the other party's basic legal relationship, but only care about whether the swap transaction with the other party can meet the needs of our basic legal relationship, and choose the counterparty for the swap based on the actual needs of our basic legal relationship; After the counterparty is selected, the two parties only negotiate and reach a consensus on the specific contents of the swap, credit support and other matters. It can be seen that the agreement of exchanging legal relations does not include all aspects of basic legal relations.
Separating the legal relationship of financial swap from the basic legal relationship can cut off the legal relationship between them, ensure that the legal relationship of financial swap is not affected by the flaw, revocation or invalidity of the basic legal relationship, and ensure that the flaw, revocation or invalidity of the legal relationship of financial swap does not affect the normal establishment and performance of the basic legal relationship, which is conducive to ensuring the stable and smooth realization of the legal relationship of financial swap and promoting the stability and development of the whole financial market.
The legal relationship of financial swap and the basic legal relationship are both unified, independent and different. Grasping this point is of great significance for the smooth development of financial swap transactions and the correct application of laws to solve financial swap disputes.