Designing New Legal Rules and Principles for Global Finance Regime

本研究旨在设计新的法律的规则和原则，以更好地适应全球金融的现实。日本金融监管规则在一定程度上采纳了来源地法原则和承认原则，但并不十分明确。这些原则的存在应得到广泛承认，并应在监管制度中予以采纳。日本法院可以根据传统的法律冲突规则来处理全球金融中的许多现有和潜在问题。然而，玩家对可预测性的要求，即，金融交易的当事方和设计者要求制定更明确、更合理和更详细的冲突规则。本研究的建议之一是建立一个新的法律冲突规则，采用债权人法或应收款证券化起源法的原则。最近的一些作者认为，与传统的法律选择办法相比，适用规章的许多情况可以用绝对或国际强制性规则办法来解释。本研究报告虽然承认前一种办法的效用，但对下述主张提出质疑，即只要强制性规则作为“公法”适用，传统办法就必须让位于前一种办法。"

This study is indented for designing new legal rules and principles which are better suited for the realty of global finance.1. To a limited degree, Japanese regulatory rules concerning finance has adopted the principle of law of origin and the principle of recognition, but not so clearly. The existence of these principles should be widely acknowledged and they should be adopted as such in the regulatory regime.2. It is submitted that many present and potential problems of global finance may be dealt with by Japanese courts with by the traditional rules of conflict-of-law. However, requirement of predictability by players, i.e., parties and architects of financial transactions asks for clearer, more reasonable and more detailed rules of conflicts. One of the proposals of this study calls for a new rule of conflict-of-law that adopts the principle of the law of creditors or originations of securitization of receivables.3. It is argued by recent writers that many instances of application of regulation can be explained by the absolute or international mandatory rules approach contrasted with the traditional choice-of-law approach. This study, while acknowledging the utility of the former approach, casts doubts on the assertion that the traditional approach must give way to the former whenever a mandatory rule is applicable as "public law."