Several Opinions of Shanghai Courts on Services and Guarantees for Further Opening-up of Financial Sector
上海法院服务保障进一步扩大金融业对外开放若干意见
Aiming to fully implement the spirit of General Secretary Xi Jinping’s important instructions on expanding the opening up of the financial sector and the Central Committee's decisions on further opening the gate of the financial sector to the outside world, and to establish a sound legal environment for the high-quality development of Shanghai International Financial Center, this opinion is formulated in accordance with the Framework Plan for the Lin-gang Special Area of China (Shanghai) Pilot Free Trade Zone, Opinions for Further Accelerating the construction of the Shanghai as an International Financial Center and Providing Financial Support for the Integrated Development of the Yangtze River Delta Region, Opinions of the Supreme People's Court on Provision Regarding the Judicial Services and Guarantees Provided by the People's Courts for the Construction of China (Shanghai) Pilot Free Trade Zone Lin-Gang Special Area, Guidelines of the Supreme People's Court on on the Services and Guarantee of the People's Courts for Further Expanding Opening-up, and the relevant framework plans of the Shanghai Municipal Party Committee in the light of the trial practice of courts in Shanghai.
为深入贯彻习近平总书记关于扩大金融对外开放的重要指示精神，贯彻落实中央关于进一步扩大金融业对外开放的决策部署，为上海国际金融中心高质量发展营造良好法治环境，根据《中国（上海）自由贸易试验区临港新片区总体方案》《关于进一步加快推进上海国际金融中心建设和金融支持长三角一体化发展的意见》《最高人民法院关于人民法院为中国（上海）自由贸易试验区临港新片区建设提供司法服务和保障的意见》《最高人民法院关于人民法院服务保障进一步扩大对外开放的指导意见》及上海市委的相关工作部署，结合上海法院工作实际，制定本意见。
I. General requirements of judicial service and guarantees for further opening-up of the financial sector
一、为进一步扩大金融业对外开放提供司法服务保障的总体要求
1.We shall deeply understand the significance of further opening up of the financial sector
1.深刻认识进一步扩大金融业对外开放的重大意义
As a China's basic national policy, opening-up is the only way for national prosperity and development. Further opening-up of the financial sector stands for a major decision made by the CPC Central Committee with Comrade Xi Jinping at its core, and a necessary requirement on constructing a new development paradigm with domestic circulation being the mainstay and the two circulations reinforcing each other. Moreover, the promotion is also the internal need for further deepening the reform and high-quality development of China's financial industry. Widening the opening-up of of the financial sector will help to promote China's financial reform and innovation, further improve the financial market system in Shanghai, and enhance the attractiveness and influence of Shanghai’s role as the International Financial Center, so that we can enhance China's voice in making rules in the international financial market and better serve the economic and social development and reform and opening-up process in China. On the basis of the overall situation stated by the Party and the State, all courts in Shanghai shall deepen the understanding on the significance of further opening-up of the financial sector, and resolutely implement the spirit of General Secretary Xi Jinping's important instructions, so as to provide high-quality legal services and forceful judicial guarantees for the opening-up of the financial sector.
对外开放是我国的基本国策，是国家繁荣发展的必由之路。推动进一步扩大金融业对外开放，是以习近平同志为核心的党中央的重大决策部署，也是构建以国内大循环为主体、国内国际双循环相互促进新发展格局的必然要求，更是我国金融业进一步深化改革实现高质量发展的内在需要。进一步扩大金融业对外开放有助于促进我国金融领域改革和金融创新，推动上海进一步健全金融市场体系，增强国际金融中心吸引力和辐射力，争取国际金融市场规则话语权，更好地服务国家经济社会发展和改革开放进程。全市法院要立足党和国家工作大局，深刻领会进一步扩大金融业对外开放的重大意义，坚决贯彻落实习近平总书记的重要指示精神，为更高水平的金融业对外开放提供优质法律服务和有力司法保障。
2.We shall make clear the goal of judicial services and guarantees for further opening-up of the financial sector shall be
2.明确司法服务保障进一步扩大金融业对外开放的工作目标
All courts in Shanghai shall adhere to Xi Jinping Thought on socialism with Chinese characteristics for a new era, and generally implement the spirit of the 19th National Congress and the Second, Third, Fourth and Fifth plenums of the 19th CPC Central Committee and the spirit of General Secretary Xi Jinping's important speeches on on expanding opening-up. All courts shall firmly establish political awareness, overall situation awareness and responsibility awareness, and perform judicial duties in accordance with the law, establish and improve a professional financial judicial mechanisms, so as to fairly and efficiently resolve foreign-related financial disputes, standardize and regulate financial innovation, effectively prevent financial risks, benchmark the highest international standards, thus strengthening the international influence of financial justice and creating a sound law-based environment for the healthy and stable development of the financial industry.
全市法院要坚持以习近平新时代中国特色社会主义思想为指导，全面贯彻党的十九大和十九届二中、三中、四中、五中全会精神和习近平总书记关于扩大对外开放的重要讲话精神，牢固树立政治意识、大局意识、责任意识，依法履行审判职责，建立健全专业化金融审判机制，公正高效化解涉外金融纠纷，规范引导金融创新，有效防范金融风险，对标国际最高标准，扩大金融司法国际影响力，为金融业健康稳定发展营造良好法治环境。
3.We shall stick to the basic principles of judicial services and guarantees for widening opening-up of financial industry
3.正确把握司法服务保障金融业进一步扩大对外开放的基本原则
We shall adhere to the correct political direction, honor the absolute leadership of the Party over all works of the People's Court, firmly work for the national strategy and the overall work situation. We shall upholds the principle of equal protection, safeguarding both Chinese and foreign entities and individuals in accordance with international rules, so as to create a fair and equitable environment for financial markets participation. We will fully respect the autonomy of will of the parties concerned, and guarantee their rights in choosing the dispute resolution methods, jurisdictions as well as applicable laws and regulations in accordance with the law. We shall stick to the path of professional development, establish and improve financial trial system and mechanism that meet the needs of widening opening-up of financial sector. Moreover, We shall follow the trend of internationalization, adopt international rules and practices in view of the reality, so as to strengthen the connection between the rules in China and those of the international financial market, and support the globalization development of our financial market and the promotion of the status of the RMB in the global market. In order to provide adequate space for the development of the financial market in China and guarantee the innovation of financial supervision mechanism, we will continually encourage financial innovation. Furthermore, we will adhere to the bottom line of financial risk management, attach great importance to risk transmission in international financial markets, exercise judicial jurisdiction in accordance with the law, so as to ensure national financial security.
坚持正确的政治方向，坚持党对人民法院各项工作的绝对领导，坚决服从服务国家战略和工作大局；坚持平等保护原则，按照国际标准为中外当事人提供权利保护，营造公平公正的金融市场参与环境；充分尊重当事人意思自治，依法保障当事人在选择纠纷解决方式、管辖地、准据法等方面的权利；坚持专业化发展道路，建立健全符合金融业对外开放需求的金融审判体制机制；坚持国际化方向，合理采纳国际金融规则和惯例，促进与国际金融市场规则接轨，支持我国金融市场的全球化发展和人民币国际地位提升；坚持鼓励金融创新,为金融市场发展创新提供充足空间，为金融监管机制创新提供司法保障；坚守金融风险防范底线，高度重视国际金融市场风险传递，依法行使司法管辖权，保障国家金融安全。
II. Judicial system and mechanism shall be established and facilitated to commensurate with expanding opening-up of financial industry
二、建立健全与进一步扩大金融业对外开放相适应的司法体制机制
4.Jurisdiction mechanism of foreign-related financial cases shall be improved
4.完善涉外金融案件管辖机制
We shall respect the rights of parties concerned in choosing the dispute resolution methods as well as applicable laws and regulations, reasonably determine the basis of jurisdiction, and exercise judicial jurisdiction over foreign-related financial disputes in accordance with the law. As to financial dispute cases involving cross-border and offshore financial transactions, if the parties concerned choose certain court in Shanghai to hear the case by agreement, support shall be provided in accordance with the law. Except for the violation of jurisdiction by level and exclusive jurisdiction, the courts shall not actively reviewed ex officio whether there is any substantial connection between the dispute and the competent court chosen by parties at the stages of case filing and hearing. Judicial jurisdiction shall be exercised in accordance with the law for disputes arising from offshore financial activities that disturb the domestic financial order and cause damage to legitimate rights and interests of domestic financial consumers and investors. In addition, We shall explore and improve the settlement mechanism for international conflicts of judicial jurisdiction over foreign-related financial cases and international parallel proceeding issues.
尊重当事人选择纠纷解决方式和适用法律的权利，合理认定管辖依据，依法行使涉外金融纠纷司法管辖权。依法支持当事人协议选择上海法院审理涉跨境、离岸金融交易的金融纠纷案件。除违反级别管辖和专属管辖外，在立案和审理阶段通常不依职权主动审查当事人选择管辖法院与争议是否有实际联系。对于境外金融活动扰乱境内金融秩序，损害境内金融消费者、投资者合法权益所引发的纠纷，依法行使司法管辖权。探索完善涉外金融案件司法管辖国际冲突和国际间平行诉讼问题的解决机制。
5.Professional trial mechanism for foreign-related financial cases shall be established and facilitated
5.建立健全涉外金融案件专业审判机制
We will fully leverage the edge of Shanghai courts of our specialized trial system for financial cases and organize teams of sufficient and capable judges so that foreign-related financial disputes can be properly handled and that the trial quality of cases can be ensured. Foreign-related financial dispute cases shall be properly settled by actively using such new litigation systems as litigation support, exemplary trial, and representative litigation. In addition, We shall explore mechanisms to involve experts and scholars with international financial legal knowledge background to participate in the trial of cases as assessors to improve the professionalism of trial. We shall also promote the establishment of committee of experts on financial trial, improve conditions of personnel selection and appointment, applicable standards for cases, procedures of expert participation and other mechanisms, in order to acquire professional advice or argumentation opinions in the trial of foreign-related financial disputes with significance of rule creating.
积极发挥上海法院金融审判专项组织体系优势，配齐配强审判队伍，妥善处理涉外金融纠纷，确保案件审判质量。积极运用支持诉讼机制、示范判决机制、代表人诉讼机制等新型诉讼机制妥善化解涉外金融纠纷案件。探索吸纳具有国际金融法律知识背景的专家学者作为陪审员参与案件审理，提升审判专业化水平。推动设立金融审判咨询专家库，探索聘请国际金融、法律专家参与涉外金融审判咨询，完善人员选任条件、案件适用标准、专家参与程序等机制，在审理具有规则创设意义的涉外金融纠纷中提供专业咨询或论证意见。
6.The litigation system for foreign-related financial cases shall be optimized and improved
6.优化完善涉外金融案件诉讼机制
We shall develop guidelines on foreign-related financial cases, improve such mechanisms as extraterriter service, remote evidence justification, investigations and evidence collection, court trial, foreign law ascertainment, improve the information feedback mechanism for process of extraterriter service, and promote the convenience for foreign-related financial dispute settlement. We shall also deeply apply judicial technology, give priority to facilitate the whole process of online settlement of foreign-related financial cases, improve rules for electronic litigation, expand the application of electronic service, and explore the mechanism of assistance service to further increase the efficiency of litigation. In addition, the scope of materials necessary for notarization and certification shall be clarified in accordance with the law to reduce the burden of proof of the parties. And We shall further strengthen cooperation with colleges, universities, and relevant research institutions in the study of foreign law ascertainment, and innovate mechanisms for foreign law ascertainment and application so that foreign law can be ascertained and applied more efficiently, accurately and conveniently.
制定涉外金融审判指引，完善域外送达、证据远程认证、调查取证、庭审、域外法查明等机制，完善域外送达流程信息反馈机制，提升涉外金融纠纷解决的便捷性。深度运用司法科技，优先推进涉外金融案件全流程网上办理，健全电子诉讼规则，扩大电子送达适用范围，探索协助送达机制，进一步提升诉讼效率。依法明确必须办理公证、认证的证据材料范围，减轻当事人的证明负担。进一步强化与高校及相关研究机构在域外法查明研究方面的合作，创新域外法查明及适用机制，更加高效、准确、便利地查明和准确适用域外法。
7.Diversified settlement mechanism for foreign-related financial disputes shall be established and facilitated
7.建立健全涉外金融纠纷多元化解机制
We shall actively adapt to features and demands of foreign-related financial disputes, and strengthen cooperation with financial supervision institutions, arbitration institutions, industry associations, and mediation organizations to jointly create a new pattern of diversified dispute settlement with an organic link among litigation, arbitration, and mediation. Based on respecting for the parties’ right to choose way of dispute resolution, parties concerned shall be led to give preference to direct application for mediation through one-stop diversified dispute settlement platform of Shanghai court. We shall support eligible mediation institutions and arbitration institutions to access the one-stop diversified resolution settlement platform of Shanghai court, add eligible mediation organizations and mediators to the roster of specially invited mediation, and actively bring professional lawyers in to full play of the diversified resolution of financial disputes. To increase the efficiency of cooperation between litigation and mediation, online mediation and online judicial confirmation shall be actively used. In addition, We shall actively participate in international judicial cooperation and the mechanism construction of international financial dispute resolution to promote China’s power of discourse and influence on the global judicial system.
主动适应涉外金融纠纷特点和需求，加强与金融监管机构、仲裁机构、行业协会、调解组织的合作，协力打造诉讼、仲裁、调解有机衔接的多元解纷新格局。在尊重当事人纠纷解决方式选择权基础上，引导当事人优先选择通过上海法院一站式多元解纷平台直接申请调解。支持符合条件的调解、仲裁机构对接入驻上海法院一站式多元解纷平台，吸纳符合条件的调解组织或调解员加入法院特邀调解名册，积极发挥专业律师在金融纠纷多元化解中的作用。积极运用在线调解和在线司法确认方式，提升诉调对接效率。积极参与国际司法协作和国际金融纠纷争端解决机制建设，努力提升我国在全球司法体系中的话语权和影响力。
8.Cohesive mechanism of international financial rules shall be constructed
8.构建与国际金融规则衔接机制
In cross-broader financial dispute cases, We shall correctly apply rules of international market transaction, liquidation, and self-regulation, as well as customary practice, and used international judicial achievements for reference to actively promote the construction of system commensurate with international financial rules. We shall give full play to the exemplary function of financial cases actively perform , release exemplary cases to domestic and foreign countries and form a systematic database, guide subjects of financial market to establish reasonable expectation, promote the understanding and confidence of international market towards China’s financial legal system and financial judicial system, and finally propel Shanghai to play a significant part in construction of system of international financial rules as the important center of international financial dispute resolution.
在涉跨境金融纠纷案件中正确适用国际条约，合理采纳国际市场交易规则、清算规则、自律规则和惯例，借鉴国际司法成果，积极推动建立与国际金融规则相衔接的制度体系。积极发挥金融案例示范功能，向国内外发布典型案例并形成系统化的数据库，引导金融市场主体建立合理预期，促进国际市场对我国金融法律制度和金融司法体系的了解和信任，努力推动上海成为国际金融争议解决的重要中心和参与国际金融规则体系建设的重要力量。
9.China (Shanghai) Pilot Free Trade Zone and Financial Trial Innovation Pilot in Lin-gang Special Area shall be built
9.打造中国（上海）自贸试验区和临港新片区金融审判创新试验区
Based on the construction of the China (Shanghai) Pilot Free Trade Zone and Financial Trial Innovation Pilot in Lin-gang Special Area, We shall establish and facilitate trial system commensurate with further deployment of opening-up policy in financial industry, make good and sufficient use of supportive policies, support the development of financial clusters, and guarantee smooth implementation of various innovative financial policies. In addition, we shall support Shanghai Financial Court by bringing its advantage of concentrated jurisdiction into play and carrying out its work in the special program of trial of financial dispute cases. Supporting mechanisms such as professional translation and interpretation mechanisms shall be established and facilitated so that foreign parties may participate in litigation in English in pilot projects, and mechanisms such as participation of experts from home and abroad in diversified resolution for foreign-related financial disputes, and introduction of world-renowned financial accreditation agencies can be explored. The financial regulatory department shall be supported to develop its innovative regulatory pattern, such as “Regulatory Sandbox” to boost the financial innovative competitiveness within the area. We shall also actively participate in construction of legal service center within the area, establish and facilitate mechanism of cooperation with types of dispute resolution institutions within the area, support registered cross-broader arbitration institutions to work in accordance with the laws and regulations, enhance the preservation and enforcement of foreign arbitration cases, provide services and guarantees to construction of a global-oriented Asia Pacific arbitration center, and jointly build the financial dispute settlement center with international influence and attractiveness.
依托中国（上海）自贸试验区和临港新片区建设，建立健全与扩大金融业对外开放特殊制度体系相适应的审判制度体系，用好用足支持政策，支持金融集聚区建设,保障各项金融创新举措的顺利实施。支持上海金融法院发挥集中管辖优势，开展金融纠纷专项审判工作。建立健全专业翻译等配套机制，试点推进允许外籍当事人使用英语参加诉讼活动，探索境内外专家参与国际金融纠纷多元化解、引入国际知名金融鉴定机构等机制。支持金融监管部门开展“监管沙盒”等监管模式创新，提升区内金融创新竞争能力。积极参与区内法律服务中心建设，建立健全与区内各类纠纷解决机构的合作机制，支持登记备案的境外仲裁机构依法合规开展业务，加强涉外仲裁案件保全和执行工作，服务保障面向全球的亚太仲裁中心建设，共同打造具有国际影响力和吸引力的金融纠纷解决中心。
III. We shall strengthen the trial and enforcement of related disputes
三、加强相关纠纷案件审判执行工作
10.The trial of foreign-related financial criminal cases shall be strengthened
10.加强涉外金融刑事案件审理
In accordance with the law, We shall strictly punish the crimes of money laundering, illegal fund-raising, financial fraud of listed companies, insider trading, manipulation of securities and futures markets, strictly control the application of probation, increase economic sanctions such as fines, and apply the criminal "occupation prohibition" system in accordance with the law to maintain the order of the financial market. We shall also strengthen the crackdown on the criminal activities of "underground banks" and other financial institutions illegally engaged in cross-border banking, insurance and other businesses, and guard against all kinds of financial risks aroused in the process of opening-up. The communication and liaison mechanism between financial civil and commercial trials and financial criminal trials shall be further improved to strengthen our efforts to combat illegal and criminal activities in finance, and jointly safeguard the security of the financial market. In case of suspected criminal clues found in the trial of financial civil and commercial cases, relevant materials shall be timely reported and transferred to relevant departments.
依法从严惩治金融领域具有涉外因素的洗钱、非法集资、上市公司财务造假、内幕交易、操纵证券、期货市场等犯罪，严格控制缓刑适用，依法加大罚金刑等经济制裁力度，依法适用刑事“从业禁止”制度，维护金融市场秩序。增强对“地下钱庄”等非法从事跨境银行业、保险业等金融机构业务犯罪活动的打击力度，防范因对外开放造成的各类金融风险。进一步完善金融民商事审判与金融刑事审判的沟通联络机制，不断增强打击金融违法犯罪活动的工作合力，共同维护金融市场安全。在金融民商事案件审理中发现涉嫌有关犯罪线索的，及时向有关部门反映并移送相关材料。
11.The trial of cases involving cross-border securities and financial derivatives shall be strengthened
11.加强涉跨境证券及金融衍生品案件审理
According to the special institutional arrangements of cross-border securities and financial derivatives in terms of information disclosure, issuance, transaction, registration, custody and settlement, and drawing on the experience of international financial justice, the power and responsibility boundaries of trading subjects are reasonably defined. We will handle disputes involving the Shanghai-Hong Kong Stock Connect, Shanghai-London Stock Connect and Bond Connect in accordance with the law, and properly handle issues related to jurisdiction, application of law and judicial enforcement related to red chip companies, depository receipts, "Panda Bonds", cross-border ETF（Exchange Traded Funds）, and international index authorization. We shall actively explore and use the class action mechanism of securities disputes with Chinese characteristics, and improve the efficiency of resolving securities disputes involving stakeholders. We shall respect the business rules of stock exchanges and clearing houses, as well as the principle of relative immunity of civil liability caused by self-regulation. For the disputes caused by self-regulation, the parties shall be guided to make every efforts to follow the internal review procedures and the direct judicial intervention shall be reduced. We shall support the construction of a modern commodity trading mechanism combining spot and financial derivatives, and promote the function of the commodity futures market. We shall also try the OTC financial derivatives disputes in accordance with the law, correctly identify the validity of financial derivatives contracts, explore and improve the special systems such as central counterparties, termination of netting, cross default, defective assets and other special systems, as well as the applicable legal rules related to ISDA master agreement, NAFMII master agreement, and master agreement on derivatives trading in China's securities and futures market.
根据跨境证券及金融衍生品在信息披露、发行、交易、登记、托管及结算等方面的特殊制度安排，借鉴国际金融司法实践经验，合理界定交易主体的权责边界。依法审理涉沪港通、沪伦通、债券通纠纷案件，妥善处理涉红筹企业、存托凭证、“熊猫债”、跨境ETF、国际指数授权等相关司法管辖、法律适用及司法执行问题。积极探索运用具有我国特色的证券纠纷集体诉讼机制，提升涉众性证券纠纷化解效率。尊重证券交易所、清算所等业务规则以及因自律监管行为导致的民事责任相对豁免原则。对于因自律监管行为引发的纠纷，引导当事人穷尽内部复核程序，减少司法的直接干预。支持现货与金融衍生品相结合的现代大宗商品交易机制建设，促进商品期货市场发挥功能。依法审理场外金融衍生品纠纷，正确认定金融衍生品合约效力，探索完善中央对手方、终止净额结算、交叉违约、瑕疵资产等特殊制度以及与ISDA主协议、NAFMII主协议、中国证券期货市场衍生品交易主协议等相关的法律适用规则。
12.The trial of cross-border investment and financing cases shall be strengthened
12.加强涉跨境投融资案件审理
We shall properly handle all kinds of cross-border investment and financing disputes, and support foreign-invested enterprises to reinvest in China in accordance with the law. We shall also handle investment and financing cases involving new technologies, new industries, new forms of industries and new business models in accordance with the law, respect the financing arrangements between investment institutions, enterprises and their shareholders, support scientific and technological innovation enterprises to implement corporate governance structure and equity incentive plans that are compatible with their characteristics, and promote the creation of a good atmosphere to encourage enterprises to innovate and start their own businesses.
妥善处理各类涉跨境投融资纠纷，支持外商投资企业依法在境内进行再投资。依法审慎处理涉及新技术、新产业、新业态、新商业模式的投融资案件，尊重投资机构与企业及其股东等之间的融资安排，支持科创企业实行与其特点相适应的公司治理结构和股权激励计划，促进营造激励企业创新创业的良好氛围。
13.The trial of cases involving cross-border asset management products shall be strengthened
13.加强涉跨境资管产品案件审理
We shall properly handle cases involving cross-border asset management products, adhere to the principle of "the seller shall perform his due diligence, and caveat emptor". We shall also distinguish between standardized products and non-standard products, and reasonably determine the appropriate management obligations, information disclosure obligations and corresponding legal responsibilities of issuers and sellers of asset management products. For the asset management innovation products that do not violate the mandatory provisions of laws and regulations, the legal effect shall be confirmed in accordance with the law. In order to ensure the normal development of asset management business, it is necessary to clarify the fiduciary duty standards of asset management product managers in accordance with the law, respect the professional judgment of managers in investment operation, reasonably identify the duty boundary of the trustee, and effectively guarantee the normal development of asset management business.
妥善处理涉跨境资管产品案件，坚持“卖者尽责、买者自负”原则，区分标准化产品与非标准化产品等不同类型，合理确定资管产品发行人、销售人的适当性管理义务、信息披露义务及相应的法律责任。对于不违反法律法规强制性规定的资管创新产品，依法确认其法律效力。依法明确资管产品管理人的信义义务标准，尊重管理人在投资运作上的专业判断，合理认定托管人的职责边界，切实保障资管业务的正常开展。
14.The trial of disputes over letters of credit and demand guarantee shall be strengthened
14.加强信用证和独立保函纠纷案件审理
We shall respect the Uniform Customs and Practice for Documentary Credits(UCP600) and the Uniform Rules for Demand Guarantees (urdg758), follow the principle of independence of letters of credit and demand guarantees, accurately grasp the strict and consistent document review standards, adhere to the principle of necessity and limitation in the examination of basic transactions under independent guarantees, and identify the status and responsibilities of parties involved in the transaction , such as the applicant, beneficiary, issuing bank, advising bank and guarantor, etc., in accordance with the law. We shall carefully handle the cases of stop payment cases related with L/C and demand guarantee frauds, and strictly grasp the stop payment conditions. Properly handle disputes arising from financing and guarantee under L/C and demand guarantee. We shall pay attention to the illegal behaviors such as taking bank funds by fictitious basic transactions found in the trial, and take appropriate measures to promote the healthy development of finance and trade.
尊重《跟单信用证统一惯例》(UCP600)和《见索即付保函统一规则》(URDG758)等规则，遵循信用证和独立保函的独立性原则，准确把握严格相符的单据审查标准，对独立保函项下基础交易的审查坚持必要及有限原则，依法认定申请人、受益人、开证行、通知行、保证人等各方当事人在交易中的地位与责任。谨慎审理信用证和独立保函欺诈止付案件，严格把握止付条件。妥善审理因信用证、独立保函项下融资、担保等产生的纠纷。对案件审理中发现的虚构基础交易套取银行资金等违法违规行为予以重视并采取适当措施，促进金融和贸易的健康发展。
15.The trial of cross-border payment and settlement cases shall be strengthened
15.加强跨境支付结算案件审理
We shall identify the rights and obligations of all parties involved in cross-border payment in accordance with the law, strengthen the verification obligation of the authenticity and consistency of trade documents, and promote financial institutions to improve the ability to identify and prevent payment risks. We shall also clarify the time point of key financial risk transfer, coordinate the conflict between settlement finality and bankruptcy law, and reduce the liquidity risk, credit risk and systemic risk. In addition, We shall review and confirm the electronic evidence of cross-border payment and settlement in accordance with the law, actively respond to the judicial needs of electronic payment application of big data, Block Chain, biometric identification, artificial intelligence and other modern information technologies, and improve the settlement efficiency.
依法认定跨境支付结算参与各方的权利义务，强化对贸易单证真实性、一致性的审核义务，促进金融机构提升支付风险识别防范能力。明确关键金融风险转移的时点，协调结算最终性与破产法等法律之间的冲突，减少因此产生的流动性风险、信用风险和系统性风险。依法审查和认定跨境支付结算电子证据，积极回应电子支付应用大数据、区块链、生物识别、人工智能等现代信息技术产生的司法需求，提高结算效率。
16.The trial of cross-border insurance cases shall be strengthened
16.加强涉跨境保险案件审理
We shall support the development of cross-border commercial insurance in tourism, medical care, logistics and other fields. Based on the fact that cross-border insurance products are obviously different from conventional insurance products in actuarial development and risk assessment, we fully respect the characteristics and limitations of cross-border insurance products in terms of insurance threshold, applicable population, premium determination, insurance cycle, underwriting risk, etc. We will strengthen the examination of formatted exemption clauses and special provisions in cross-border insurance policies, and pay attention to the compliance of the insurer's underwriting process and the performance of prompt and explanation obligations. We shall strengthen the litigation guidance for the parties, guide the parties to fix, translate, notarize and apply for claims in time for the evidence of accident report and actual loss formed abroad, so as to avoid the deadlock of claim settlement due to unfavorable evidence. We shall also provide support to expand the coverage of policy insurance such as export credit insurance, further straighten out the connection and interpretation logic between the agreement of export credit insurance contract and the application of the insurance law, carefully distinguish the appearance of trade disputes and the causes of disputes, and accurately grasp the disputes between both sides of trade and whether they belong to the scope of policy liability. The validity of the "dispute precondition clause" of the insurance policy shall be reasonably determined in combination with the extent of the insurer's performance of the duty of presentation and whether the rights and obligations of both parties are significantly unbalanced. We will handle cases involving the transaction of insurance products in accordance with the law, and support the development of the insurance trading market.
支持发展旅游、医疗、物流等跨境商业保险，基于跨境保险产品在精算开发和风险评估方面明显区别于常规保险产品，充分尊重跨境保险产品在投保门槛、适用人群、保费厘定、保障周期、承保风险等方面的特点与限制。加强对跨境保险保单中格式化免责条款、特别约定条款的审查，关注保险人承保环节的合规性及履行提示、说明义务情况。加强对当事人的诉讼指引，对形成于境外的出险报案、实际损失等证据，引导当事人及时固定、翻译、公证并申请理赔，避免后续因举证不利陷入理赔僵局。支持扩大出口信用保险等政策性保险的覆盖面，进一步理顺出口信用保险合同自身约定与参照适用《保险法》之间的衔接关系和解释逻辑，审慎区分贸易纠纷外观与纠纷产生原因，准确把握贸易双方争点及是否属于保单责任范畴。合理认定保单“纠纷先决条款”效力，结合保险人履行提示说明义务程度、双方权利义务是否显著失衡等角度妥善加以判定。依法审理涉保险产品交易案件，支持保险交易市场发展。
17.The trial of cross-border financial leasing and factoring disputes shall be strengthened
17.加强跨境融资租赁和保理纠纷案件审理
We shall accurately grasp the transaction characteristics of financial leasing and factoring, correctly understand and apply the relevant provisions on financial leasing and factoring in the Civil Code, and support the standardized development of cross-border non-bank financing. We shall also respect the agreement of the parties, and apply UNIDROIT Convention on International Financial Leasing, International Factoring Convention, United Nations Convention on the Assignment of Receivables in International Trade and other relevant international treaties in accordance with the contract. We shall review transactions that engage in substantive lending in the name of financial leasing and factoring, such as fictitious financial leases, fictitious accounts receivable, etc., and apply laws based on their true transaction relationships to severely punish fraud.
准确把握融资租赁和保理的交易特征，正确理解和适用《民法典》中有关融资租赁和保理的相关规定，支持跨境非银行融资方式规范发展。尊重当事人约定，依法依约适用《国际融资租赁公约》《国际保理公约》《国际贸易应收账款转让公约》等相关国际条约。依法审查交易主体虚构融资租赁物、虚构应收账款等以融资租赁、保理为名从事实质性借贷的行为，依据其真实交易关系适用法律，严惩欺诈行为。
18.The trial of shipping financial disputes shall be strengthened
18.加强航运金融纠纷案件审理
We will continue to carefully handle cases of ship financing lease, ship mortgage and shipping financing cases with goods on board, shipping documents and bonded warehouse receipts as collateral, prudently handle real transaction disputes with shipping financial derivative index as reference, and vigorously support shipping financial innovation and prosperity and stability of shipping financial market. We will try shipping insurance disputes in accordance with the law, strengthen the research on the legal application of shipping insurance clauses and insurance innovative products, support the reform of shipping insurance registration system, properly solve new types of disputes such as shipping reinsurance, shipping offshore insurance and ship owner mutual insurance, and help build an international shipping insurance center with global influence.
精心审理船舶融资租赁、船舶抵押和以船载货物、海运单证及保税仓单等为担保物的航运融资案件，审慎处理以航运金融衍生指数为履行参照的现实交易纠纷，大力支持航运金融创新和航运金融市场繁荣稳定。依法审理航运保险纠纷，加强对航运保险条款和保险创新产品法律适用的研究，支持航运保险注册制改革，妥善解决航运再保险、航运离岸保险和船东互保等新类型纠纷，助力打造具有全球影响力的国际航运保险中心。
19.The trial of cross-border financial administrative cases shall be strengthened
19.加强涉跨境金融行政案件审理
We shall, in accordance with the law, fairly and efficiently handle all kinds of cross-border financial administrative cases, such as administrative penalties, administrative licensing, and the performance of legal duties, supervise and promote foreign-related financial regulatory institutions to perform their duties in accordance with the law, and enhance the authority and effectiveness of financial supervision. We will give full play to the role of the Diversified Administrative Disputes Resolution Centers in all Shanghai courts, vigorously promote the substantive resolution of cross-border financial administrative disputes, support financial regulators to carry out administrative reconciliation in accordance with the law, and fully protect the legitimate rights and interests of various market entities. We shall strengthen the positive interaction and effective connection between judicial trial and administrative supervision, safeguard financial supervision in accordance with the law, help optimize the business environment, and jointly promote administration in accordance with the law.
依法公正高效审理行政处罚、行政许可、要求履行法定职责等各类涉跨境金融行政案件，监督并促进金融监管机构依法履职，增强金融监管的权威性和有效性。充分发挥全市法院行政争议多元调处中心职能作用，大力推进涉跨境金融行政争议实质性化解，支持金融监管机构依法开展行政和解工作，充分保护各类市场主体合法权益。加强司法审判与行政监管的良性互动和有效衔接，依法保障金融监管，助力优化营商环境，共同促进依法行政。
20.The relevant enforcement shall be strengthened
20.加强相关执行工作
We shall improve the enforcement mechanism that fits the modern financial capital market, increase the intensity and improve the efficiency of enforcement. We shall further strengthen the concept of good faith and stress the proper behavior in the enforcement, strictly prohibit over standard and arbitrary seizure, handle cross seizure in accordance with the law, prudently apply compulsory measures in accordance with the law. We shall reasonably determine the scope of property investigation and control according to the characteristics of financial cases, and leverage the function of property financing. We shall also further standardize the rules for judicial disposal of financial assets, regulate the freezing and judicial disposal of listed companies' stocks, various bonds, negotiable certificate of deposit, financial products and other financial products, expand the scope of application of the implementation mechanism for bulk stocks, and explore cross-border property investigation and enforcement mechanisms. We shall strengthen judicial assistance in international finance and handle requests for judicial assistance such as recognition and enforcement of judgments and arbitral awards of foreign civil and commercial courts in strict accordance with relevant international treaties and the principle of reciprocity. We shall improve the effectiveness of preservation and enforcement of non-litigation financial disputes related to arbitration, support and protect the application and implementation of interim measures such as property preservation and evidence preservation of Chinese and foreign parties before and during arbitration. Online judicial assistance mechanism with securities registration and settlement institutions shall be established for online inquiry and freezing of property to facilitate the judicial enforcement.
健全与现代金融资本市场要求相适应的执行机制，加大执行力度，提高执行效率。进一步强化善意文明执行理念，严禁超标的查封和乱查封，依法处理交叉查封问题，依法审慎适用强制措施，根据金融案件特点，合理确定查控财产范围，注重发挥查封财产融资功能。进一步规范金融资产司法处置规则，规范上市公司股票、各类债券、同业存单、理财产品等金融产品的冻结与司法处置，拓展大宗股票执行机制适用范围，研究探索跨境财产调查和执行机制。加强国际金融司法协助力度，严格依照有关国际条约和互惠原则办理承认与执行外国民商事法院判决和仲裁裁决等司法协助请求。提升与仲裁相关的非诉金融纠纷的保全、执行实效性，依法支持和保障中外当事人在仲裁前和仲裁中的财产保全、证据保全等临时措施的申请和执行。与证券登记结算机构建立线上司法协作机制，实现财产线上查询、冻结，助力案件执行。
IV. The role of judicial cooperation in the further opening-up of the financial sector shall be made fully use of
四、充分发挥司法在金融业进一步扩大对外开放中的协同治理作用
21.We shall prevent and resolve cross-border financial risks
21.防范化解跨境金融风险
We shall pay close attention to the effect of foreign financial market to financial market in China, intensify the source regulation of financial risk management, and prevent the intrusion of cross-border financial risk. We shall respect the professional supervision of financial regulators and ban the legal effect of financial products and transaction models in the name of financial innovation that cover up financial risks, evade financial supervision and take advantage of the institution in accordance with the law. China will support the establishment and improvement of cross-border financial risk management mechanisms of financial infrastructure in Shanghai, and ensure the security of such trading or clearing systems as cross-border RMB clearing system. With respect to the reputation of financial institutions, as well as rights and interests of financial consumers, we will crack down on counterfeit financial institutions engaging in illegal financial activities. We will make full use of the big data system in Shanghai courts for financial trial to strengthen the function of data collection and analysis, promote the interconnection of judicial data and supervisory data, and help accurately predict the consequence of cross-border financial disputes, thus providing information back-up for forewarning financial risks concerning foreign affairs. With the aim of ensuring financial security, we shall improve the management of mechanisms linking people, banks and criminals, put forward timely suggestions and countermeasures to the financial supervision departments, and finally establish a long-term coordination mechanism.
高度关注境外金融市场对国内金融市场的传导效应，强化金融风险的源头治理，筑牢境内外金融风险隔离墙。尊重金融监管机构的专业监管，对以金融创新为名掩盖金融风险、规避金融监管、进行制度套利的金融产品及交易模式，依法否定其法律效力。支持在沪金融基础设施建立健全跨境金融风险防范机制，维护跨境人民币结算系统等交易、结算系统安全。严厉打击假冒知名金融机构从事非法金融活动的行为，依法维护金融机构声誉，保障金融消费者权益。充分运用上海法院金融审判大数据系统，强化数据采集和分析功能，加强司法数据和监管数据的互联互通，准确研判跨境金融纠纷案件态势，为涉外金融风险的防范预警提供信息支持。完善民、行、刑衔接机制，及时向金融监管部门提出对策建议，建立长效协作机制，共同保障金融安全。
22.China will support openness and innovation of Fintech
22.支持金融科技开放创新
We will support supervision departments to carry out the pilot project of supervision on Fintech innovation, and handle financial disputes arising from the pilot project in accordance with the law. Meanwhile, innovation encouragement, risk management and protection of rights and interests of parties concerned shall be taken into account, so as to reinforce the regulation on Fintech innovation. Also, China will strengthen the protection of intellectual property rights in the field of Fintech, and promote the research and development of such key emerging technologies as big data, artificial intelligence, blockchain and 5G, so as to ensure fair competition in Fintech market and propel the integration of technological innovation and financial innovation. In this approach, we can strengthen the security and protection of financial data, consolidate professional support and coordination of works, and promote the improvement of the security management mechanism for cross-border flow of financial data.
支持金融监管部门开展金融科技创新监管试点，依法处理因创新试点引发的金融纠纷，兼顾鼓励创新、风险防范和金融消费者及投资者权益保护，促进提升金融科技创新监管能力。增强金融科技知识产权保护力度，促进大数据、人工智能、区块链、5G等新兴关键技术研发，保障金融科技市场公平竞争，推动技术创新与金融创新融合发展。加强金融数据安全保护，强化专业支持和工作协同，促进完善金融数据跨境流动安全管理机制。
23.The construction of judicial personnel in the field of finance shall be constructed
23.加强金融司法人才队伍建设
Integration of trial resources, enhancement of the professionalism of financial trial teams and cultivation of competent professionals shall be strengthened to ensure the justice of financial trials, and encourage more professionals to join the team. Financial law training shall be carried out by both universities and finance research institutions, and more competent judges will be selected to study abroad and broad their international horizons. We shall also promote such exchanges of talents as recommending judges who are professional in financial trials to conduct practices in financial supervision departments or financial institutions. Research on financial trial theory shall be positively performed by giving full play to the role of the Financial Trial Theory Committee of the China Trial Theory Research Association and the Financial Research Branch of the Shanghai Institute of judicial think tanks. Benchmarking against the first-class International judicial standard in financial field, we shall strive to build a team of professionals who are familiar with the knowledge of law, finance and foreign language for the trial of financial disputes.
整合审判资源，大力培养高素质金融审判专业人才，推进金融审判团队的专业化建设，确保金融案件的审判质量。与高校、金融研究机构合作开展金融法律培训，选派优秀法官赴境外研修深造，开拓国际视野。加强人才交流，输送金融审判法官到金融监管部门及金融机构实践锻炼。充分发挥中国审判理论研究会金融审判理论专业委员会和上海司法智库学会金融研究分会平台作用，积极开展金融审判理论研究。对标国际一流金融司法水准，着力培养一支懂法律、懂金融、懂外语的金融审判队伍。
24.Judicial exchanges and cooperation of international finance shall be carried out actively
24.积极开展国际金融司法交流合作
As China's International Exchange Base for Financial Trials in Shanghai, we shall strengthen communications and exchanges with the judicial institutions, supervision departments of well-known international financial centers, and international financial organizations. Also, we shall establish a research center concerning the rule of financial law in cooperation with financial supervision departments and universities in Shanghai, aiming to carry out researches in the cross-fields of law, economics and finance, so as to better share information and achievements on ruling of financial law and relevant cases in a global view. Moreover, we shall strengthen communications with the financial sector, put forward advanced research on legal issues with respect to finance, and intensify cooperation in such fields as anti-money laundering, so as to prevent financial disputes and risks at source.
充分发挥中国法院金融审判国际交流（上海）基地功能，加强与知名国际金融中心的司法机构、监管部门和国际金融组织的沟通交流。与金融监管部门、在沪高校合作成立金融法治研究中心，开展法学与经济学、金融学交叉领域研究，发布全球金融法治研究、金融案例信息和成果。加强与金融业界的沟通交流，开展金融法律问题的前瞻性研究，强化反洗钱等领域的合作，从源头预防金融纠纷和金融风险。