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全球金融危机将信用违约互换从华尔街推到公众的视野,随即被认为是罪魁祸首,谤满天下,对其如何监管也成为长期以来争议的焦点。以美国和欧盟为代表,形成了两条对于CDS的不同监管径路,即美国遵循证券交易法的监管路径,而欧盟则是遵循保险法的监管路径。监管路径的分歧源于CDS属性界定不清,因此,有必要在对CDS交易机制厘清及其属性争议梳理的基础上,寻求对于CDS法律性质的界定,从而助益于在市场发展和有效监管之间寻求平衡。
The global financial crisis pushed credit default swaps from Wall Street to public view, and was immediately considered the culprit, slander the world, how to regulate its has become the focus of controversy over a long period of time. With the United States and the European Union as the representatives, two different regulatory approaches to CDS have been formed, namely, the United States follows the regulatory path of the Securities and Exchange Act, while the EU follows the regulatory path of insurance law. Therefore, it is necessary to seek a definition of the legal nature of CDS on the basis of clarifying the CDS transaction mechanism and its property disputes, so as to benefit the market development and effective regulation Seeking balance between.