The Evolution of the Derivatives Trading’s Legality of the Private Law
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    Abstract:

    As a contractual arrangement of avoiding risks, derivatives trading has never been broken off in human history. The more complex and uncertainty of trading are, the more advanced the derivatives trading will become. Due to its highly speculative characteristics, derivatives trading had been regarded as gambling and refused to acknowledge its validity of private law in many countries for long time in human history. In the early twentieth century, realizing the positive significance of hedging derivatives trading, people tried to distinguish between helpful derivatives trading and pure gambling contracts in the private decisions and the legislation, but it was not successful. In the late twentieth century, capitalist culture’s tolerance to speculation and the argument for hedging function in the economic theory made the derivatives trading’s reprehensibility of the morality fade away. Courts gradually gave up scrutinizing the derivatives trading’s legality of the private law. After the 2008 financial crisis, although public opinions and academia still take some derivatives trading as some kinds of gambling and questioned their legality, most countries’ regulation of derivatives trading does not return to the tradition.

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张舫,任红.衍生品交易的私法合法性演进[J].重庆大学学报社会科学版,2014,20(6):142~152

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  • Received:May 11,2014
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  • Online: December 08,2014
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