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国际金融衍生交易实践的迅猛发展给法学研究提出了一系列新的问题和挑战。在整个金融衍生交易法制中,对场内交易问题已有初步的规定,而场外金融衍生交易方面则是一片完全未开发的处女地。场外交易的当事人之间要通过谈判来确定他们之间的交易规则,即交易契约,因而交易契约在场外交易中无疑具有极其重要的地位。本文通过对赌博合同、保险合同、金融衍生交易合同这三种合同的比较分析,指出金融衍生交易合同实质上具有射幸性质,明确这一性质的目的乃是为了解决金融衍生交易合同在中国民事法律层面上的合法性问题。
The rapid development of the practice of international financial derivatives has brought a series of new problems and challenges to legal research. In the entire legal system of financial derivative transactions, there are preliminary provisions on the intraday trading issues, while the OTC derivative transaction is a virgin land that has not yet been developed. Over-the-counter transactions between parties to negotiate between them to determine the trading rules, that is, the contract of exchange, and therefore the transaction contract in the over-the-counter transaction undoubtedly has an extremely important position. By comparing the three contracts of gambling contracts, insurance contracts and financial derivatives contracts, this paper points out that financial derivative contracts have the essence of nature of shooting fortune. The purpose of clarifying this character is to solve the problem of financial derivative contracts in Chinese civil law Level of legitimacy issues.