Foreign exchange deposits in China: violations do not violat_Financial network
返回首页
当前位置: 主页 > Finance >

Foreign exchange deposits in China: violations do not violat

时间:2018-12-15 19:55来源:未知 作者:admin
  
Foreign exchange deposits in China: violations do not violate the law

A few years ago, I heard the HR of a company in the industry accidentally: We must explain the legal risks to employees when recruiting.

Later, I heard that many companies in the industry were pulled banners, splashed paint, and even blackmailed by triad organizations. The news of fraudulent running has never stopped. The heavyweight slashing has also been heard, and some people in the industry have heard it. Then, what is the status of foreign exchange margin trading based on current Chinese laws?

In general, the participants in the foreign exchange market are mainly foreign exchange banking governments or central banks, foreign exchange brokers, customers and investors. Among them, the so-called forex broker, that is, the intermediary who recruits customers to conduct foreign exchange transactions, does not participate in foreign exchange trading itself (except of course, the market maker), but only the intermediary who connects the bank and the customer and promotes the transaction between the two parties. The purchase and sale of foreign exchange and other transactions by customers are between them and the foreign exchange banks, and have nothing to do with the intermediary. In the whole process of the transaction, the forex broker only plays an introductory role between the customer and the foreign exchange bank, and interconnects the transactions between the two parties.

For purely intermediary foreign exchange brokers, their behavior is an intermediary act, not a transaction. In criminal law, intermediary behavior cannot be sinned separately, and qualitative is mainly determined by the nature of the main behavior. This is not difficult to understand.

Then what are the main behaviors of the foreign exchange margin trading behavior? Does it constitute a crime?

At present, the representative office of a foreign brokerage stationed in China is a resident representative office of a foreign enterprise. It engages in non-profit business activities related to foreign countries. By recruiting salesmen and paid training, the relevant network and paper are available. Publicize the media and offline activities to develop customers and attract investors.

The criminal law stipulates that "violation of business practices that seriously disrupt market order" is applicable to illegal business operations, and foreign exchange margin trading behaviors we often hear people say "in legal gaps" or gray areas. Fundamentally speaking, this statement is not wrong. But it does not mean that there are no relevant regulations.

Regarding the regulation of foreign exchange margin, Article 4 of the Regulations on Foreign Exchange Control stipulates that “the foreign exchange receipts and payments or foreign exchange business activities of domestic institutions and domestic individuals, as well as the foreign exchange receipts and payments or foreign exchange operations of overseas institutions and overseas individuals shall apply. These Regulations. "Obviously, foreign exchange security deposits should be regulated by China's Foreign Exchange Control Regulations.

In respect of the establishment of certain relevant representative offices or branches in China for foreign exchange margin trading and other financial derivative transactions, Article 16(2) of the Regulations on Foreign Exchange Control states that “foreign institutions and overseas individuals are The issuance and trading of securities or derivative products in China shall comply with the state regulations on market access and be registered in accordance with the regulations of the foreign exchange administrative department of the State Council. Therefore, foreign institutions or individuals engage in securities such as foreign exchange margin trading in China. Or the issuance and trading activities of derivative products shall be carried out in accordance with China's market access regulations.

So, is China’s market access to foreign exchange margin trading now? Unfortunately, not yet.

In June 2008, the State Administration of Foreign Exchange stated in the "Reply on the Identification of Issues Related to Illegal Internet Trading Practices" that "in China, if an individual wants to engage in foreign exchange trading activities such as foreign exchange deposits, he must obtain the corresponding industry qualifications according to law. The domestic financial institutions shall go through relevant formalities. Under the premise of not obtaining the approval or filing of the industry supervision department according to law, no unit or individual may conduct the business activities of foreign exchange margin trading without authorization. Otherwise, the rights of both parties engaged in foreign exchange margin trading activities shall not be subject to the law. The protection, organization and participation of such an ideology are also illegally operating foreign exchange business and privately trading foreign exchange." That is to say, in China, the interests of both investors and their counterparties engaged in foreign exchange margin trading are not protected by law.

As can be seen from the above, the norms of foreign exchange margin trading violations are: China Securities Regulatory Commission, State Administration of Foreign Exchange, State Administration for Industry and Commerce and Ministry of Public Security jointly issued the "Notice on Strict Investigation and Investigation of Illegal Foreign Exchange Futures and Foreign Exchange Margin Trading Activities" and the State The "Reply of the State Administration of Foreign Exchange's Comprehensive Department on the Identification of Issues Related to the Illegal Internet Trading Behavior" issued by the Comprehensive Department of the State Administration of Foreign Exchange and the Notice of the General Office of the China Banking Regulatory Commission on the Relevant Issues Concerning the Opening of Foreign Exchange Margin Trading by Banking Financial Institutions. Since the main body of these norms is not the State Council, it cannot be called an administrative regulation, and certainly cannot be included in the scope of "national regulations."

This means that the foreign exchange margin trading behavior does not meet the "violation of national regulations" in the criminal law, that is, the preconditions for not complying with the crime of illegal business. Therefore, the foreign exchange margin trading behavior cannot constitute an illegal business operation.

In China, the supremacy of the law, including the criminal law, is the principle of sentencing and statutory law. "The law does not expressly stipulate that it is not a crime, and the law does not expressly stipulate that it will not be punished." Therefore, it can be concluded that in China, foreign exchange margin trading behavior violates the law without breaking the law, and foreign exchange Brokers’ intermediary behavior is lighter than this primary behavior.

Of course, although the criminal law does not apply to foreign exchange deposits, not constituting a crime does not mean that the law has nothing to do. In fact, disputes arising from foreign exchange deposits are generally handled in accordance with economic disputes and civil penalties are imposed.

The foreign exchange margin trading mentioned in this article is a real foreign exchange margin trading, and those financial crimes such as fraud and pyramid schemes disguised as foreign exchange margin trading are not included here, and even the leader is wanted and sentenced to jail. This is not discussed in this article. .

PS. Xiaobian believes that the HR that informs employees about the legal risks of the foreign exchange margin industry is still very Nice.

顶一下
(0)
0%
踩一下
(0)
0%
------分隔线----------------------------
发表评论
请自觉遵守互联网相关的政策法规,严禁发布色情、暴力、反动的言论。
评价:
表情:
用户名: 密码: 验证码:
推荐内容