| Abstract from DBPedia | Financial law is the law and regulation of the commercial banking, capital markets, insurance, derivatives and investment management sectors. Understanding financial law is crucial to appreciating the creation and formation of banking and financial regulation, as well as the legal framework for finance generally. Financial law forms a substantial portion of commercial law, and notably a substantial proportion of the global economy, and legal billables are dependent on sound and clear legal policy pertaining to financial transactions. Therefore financial law as the law for financial industries involves public and private law matters. Understanding the legal implications of transactions and structures such as an indemnity, or overdraft is crucial to appreciating their effect in financial transactions. This is the core of financial law. Thus, financial law draws a narrower distinction than commercial or corporate law by focusing primarily on financial transactions, the financial market, and its participants; for example, the sale of goods may be part of commercial law but is not financial law. Financial law may be understood as being formed of three overarching methods, or pillars of law formation and categorised into five transaction silos which form the various financial positions prevalent in finance. Financial regulation can be distinguished from financial law in that regulation sets out the guidelines, framework and participatory rules of the financial markets, their stability and protection of consumers, whereas financial law describes the law pertaining to all aspects of finance, including the law which controls party behaviour in which financial regulation forms an aspect of that law. Financial law is understood as consisting of three pillars of law formation, these serve as the operating mechanisms on which the law interacts with the financial system and financial transactions generally. These three components, being market practices, case law, and regulation; work collectively to set a framework upon which financial markets operate. Whilst regulation experienced a resurgence following the financial crisis of 2007–2008, the role of case law and market practices cannot be understated. Further, whilst regulation is often formulated through legislative practices; market norms and case law serve as primary architects to the current financial system and provide the pillars upon which the markets depend. It is crucial for strong markets to be capable of utilising both self-regulation and conventions as well as commercially mined case law. This must be in addition to regulation. An improper balance of the three pillars is likely to result in instability and rigidity within the market contributing to illiquidity. For example, the soft law of the Potts QC Opinion in 1997 reshaped the derivatives market and helped expand the prevalence of derivatives. These three pillars are underpinned by several legal concepts upon which financial law depends, notably, legal personality, set-off, and payment which allows legal scholars to categorise financial instruments and financial market structures into five legal silos; those being (1) simple positions, (2) funded positions, (3) asset-backed positions, (4) net positions, and (5) combined positions. These are used by academic Joanna Benjamin to highlight the distinctions between various groupings of transaction structures based on common underpinnings of treatment under the law. The five position types are used as a framework to understand the legal treatment and corresponding constraints of instruments used in finance (such as, for example, a guarantee or asset-backed security.)金融法（きんゆうほう）とは、金融関係を規律する諸法令を包括的に指し示す講学上の概念。なお、現在の日本において「金融法」という名称の法律は存在しない。 具体的にどの法令が含まれるかは論者によって異なるが、商法・会社法（社債法）や金融商品取引法など商人や企業の資本市場を利用した直接金融を規律する法令と、民法の担保物権法など、銀行等の金融機関を通じた間接金融を規律する法令を中心に構成されることが多い。銀行法や金融商品取引法、保険業法、貸金業法などの金融規制法（金融に関する行政規制法）も含まれるのが一般的であり、むしろ特にこれらを指すこともある。 金融法を専攻する法学者は、民法的側面については民法学者、商法的・行政規制法的側面については商法学者であることが一般的であるが、いわゆる現場における金融商品などがその研究対象に含まれることから、近年では銀行や金融機関出身の実務家や個々の金融商品の扱いに精通した弁護士の参入も多い。 (Source: http://dbpedia.org/resource/Financial_law) |
