論我國金融法適應性的實現路徑

高適應性的法律能快速回應市場參與者和司法裁判者的法律規則需求；更好地應對金融創新、防範金融風險；促進金融市場發展與深化。普通法系國家更為接受判例法；法律適應性更高；金融發展也較繁榮。判例法的高適應性依賴其法院獨立行使審判權。我國未將判例作為正式法源；且司法存在地方化與行政化的特徵；難以通過引入判例法實現金融法的高適應性；需另尋替代路徑。依據法律的不完備理論；法院與金融監管部門都可發展金融法。金融監管部門更具主動性、專業性；其制定的規章、規範性文件能直接約束金融市場的參與者；且由金融監管部門主導發展金融法更加契合我國的金融法制環境。為更好地實現適應性；抽象理念層面；金融監管部門在制定規章、規範性文件時應更注重金融市場參與者的私法規則訴求；回應金融創新;具體方式層面；立法機關的監督應從實體性控制為主轉向程序性控制為主；監管部門應強化自身的規則制定能力；並加強與法院在規則制定領域的合作。

A highly adaptable law can respond to the needs of market participants and judges for legal rules efficiently, which could help to accommodate to the need for financial innovation, prevent financial risks, and promote the development and deepening of the financial market. The research of Law and Finance reveals that common law countries, with strong foundation of case-law tradition, make their laws more adaptable, which could also explain the reasons for successfully developing their highly competitive financial markets. Judicial independence and the government̓s non-interference in judiciary are the critical safeguard for case law to fulfill its adaptive role. China does not regard case law as a formal source of law, and the judiciary has the characteristics of localization and administration. It is difficult to improve the adaptability of financial law by simply introducing case law. Based on the Incomplete Law Theory, both the judiciary and financial regulators can improve financial rules or regulations. Thus, there are two alternative approaches. Financial regulators are more proactive and professional since the regulations and normative documents they formulate can restrict financial market participants directly. And the financial regulators leading the development of financial law is more suitable for China̓s financial legal environment. At the conceptual level, for implementing the adaptability of financial law effectively, financial regulators should pay more attention to responding to financial innovation and the demands of private law rules of financial market participants when formulating financial legislation and governmental regulations. At the rule implementation level, the focus of legislator̓s supervision should shift from substantive control to procedural control, while regulators should improve their rule-making ability and strengthen the cooperation with the judiciary in the field of financial law-making.