金融机构受托资产管理统一监管研究

As an emerging financial services product，financial assetmanagement business has developed rapidly in this century with the involvement of more and more financial institutions and professional assetmanagers.But in China，financial assetmanagement is not a legal concept and there is no unified definition of access to the business or business operations.Therefore questions about the subject status of the practitioner or transfer of the business are brought up once disputes occur.Contradictions between the needs of judicial practice and the absence of law are prominent.This thesis believes that the legal implications of the financial assetmanagement contains three aspects:financial assets as themain subjectmatter of assetmanagement;assetmanagers as the subject，which refers to the professional assetmanagers including subjects legally engaging in asset management business，not necessarily limited to the existing system of permitted financial institutions.Investment portfolio asmanagement activities，which aims tomaintain or increase the value of the assetsmainly through the capitalmarkets，not including consultations.Currently，assetmanagers in China include fund companies，banks，securities companies，trust companies，insurance companies，financial assetmanagement companies，pension fund companies and financial holding companies，as well as investment companies and investment advisory firms who are in practice engaged in assetmanagementbusiness.Some of them are under the supervision of law，but some of them are absolutely unregulated.Due to the characteristics of financial supervision model in China，there are discrepancies among regulatory rules of different regulatory bodies，which lead to the unequal status of the assetmanagers in competition.Moreover，the lack ofmacroscopic sense and stability of the regulations results in the confusion of the business.Though financial assetmanagement activities are regulated by different regulations because of their different subjects，they are homogeneous in law.The nature of the legal relationships established through the financial asset management agreements，or between the assetmanagers and the investors(or clients)is butone in law.Scholars have different theories about the nature of financial assetmanagement.Some define it as entrusted agency or trust;some separate it into several classifications.This thesis holds the view that the nature of financial asset management relates to trust.Different with commission and brokerage，in the development of systems in the common law，trust refers to a propertymanagement system with three subjects of the settler，the trustee and the beneficiary.The settler entrusts his property rights to the trustee and allows the trustee to，according to the will of the settler and in the name of the trustee，administer or dispose of such property in the interest of a beneficiary or for any intended purposes.The trust property is independent.In financial assetmanagement activities，the settler also acts as the beneficiary.The financial asset is controlled by the manager as soon as transferred.With professional knowledge themanagermanages for the interests of the investor to increase the value of the asset.However，there are both realistic and theoretical barriers in defining the nature of financial assetmanagement as trust in China.The realistic obstacle mainly refers to the absence of trust in tradition and ideology.The strict provisions for the trustee of our trust system discourage the managers to recognize their business activities as trust for their own sake.The theoretical obstacle refers to the adoption of the subjective principle in China＇s business activities，which means that only trust companies are eligible to engage in trust activities.This paper argues that China should be in accordance with the objective princi-ple to give the trustees legal obligations as long as their activities have the same nature with trust objectively，regardless ofwhether they are registered as a trust subject.Why financial assetmanagement activities with the same nature apply different regulations?Who is a qualified financial assetmanager?Why can not the managers compete with each other equally?Facing these problems we have to first answer two questions:do financial assetmanagement activities(or financial assetmanagement industry if it is a type of business)need to be supervised or supervised by uniform regulations?Financial assetmanagement happens in the financialmarketwith financial innovation that has a subtle relationship with financial supervision.Only be supervised can the innovation observes the order of themarket and ensures the interests of the investors.For this relationship the financial assetmanagement industry should be supervised.Also，it's reasonable to supervise it by uniform regulations for four reasons.First，financial assetmanagement industry covers a large scale.Second，unified supervision is the need for regulating assetmanagementactivities.Third，unified supervision contributes to the justice and specialization of financial assetmanagementaswell as the construction of competition order.Fourth，unified supervision goes in linewith international trends.Of course，there is a sensitive issue if unified supervision of financial asset management industry is to be carried out in China－the supervisionmodel of the financial sector.While horizontally unified supervision of the financial sector is an international trend，our financial supervision model is not likely to realize it shortly in the existing background and within the current development of law.However，the possibility exists since it's possible to supervise activities in horizontal uniformity within the financial sector due to their homogeneity.When our financial supervision structure is not to be reformed at themoment，we first call upon the unification of the supervision system to setup the supervision principles and establish the access system to themarket and the supervision system for the operation of financial assetmanagement.With the unified principles，the supervision authorities can regulate the subjectswithin their own responsibilities.Subjects beyond the responsibility of the three financial regulators should be supervised by the administration for industry and commerce when the manager get registered and during operation.Self-regulation is also advocated.It's a process of value selection to determine the supervision principles of the financial assetmanagement industry.Economic law values fairness(reflecting the balance among individuals in the market)，fairness in development chances between generations，(reflecting the balance between the people and the environment)，efficiency(reflecting the maximal interests of the society in sustainable development)，interests(reflecting the protection of public interests).Therefore，supervision of the financial asset management industry should contain the contents reflecting security，fairness，efficiency and so on.These valuesmay in conflictwith each other，thus internal coordination is needed to ensure the legitimacy and validity of the principles.This paper argues that these principlesmay contain the following aspects:first，maintenance of financial stability and security;second，moderation based on themaximal interests of the society;third，protection of the interests of the clients(investors);fourth，combination ofmacro-prudence and micro-prudence.The firstquestion to be solved is:who is to be supervised，the practitioners or the industry?All the existing assetmanagement services provided by financial institutions are based on the trust system and its legal principles，thus the supervision system of the trust can not be turned away from.There is a tight connection between the access system of the assetmanagement industry and that of the trust industry.In China，trust supervision is the supervision of trust companies and the permission to the entrance of the industry is quite strict.On this back-ground this paper suggests the building of supervision system focus on the business.Managers engaging in trust are not necessarily to be trust companies，as long as they are permitted to provide the same services.Being permitted to provide a certain servicemeans to be a qualified manager of financial assetmanagement.Qualifications to be considered are as follows:capital，operational capacity，creditand procedural requirements.Meanwhile，the qualifications of the investors are also to be considered.Investorsmentioned heremainly refer to individuals because unlike institutions with professional knowledge and capacity，they are easy to be influenced by financial risks.Qualified investors are judges by theirmaturity，credit and wealth.For collective financial assetmanagement products，there should be restrictions on the numbers of investors involved，which mainly refer to private equity.The supervision of operation refers to the regulation of the behavior of the qualified manager.The status of themanager decides the code of behavior within the industry.Therefore，themanger has fiduciary obligation.Though it's improper to define financial assetmanagement as trust，it's reasonable to define assetmanager as trustee according to Trust Law.Also，the status of the manager can be decided by the relationship built through the financial assetmanagement agreementwithin particular financial area.The particularity of assetmanagement gives higher obligation to themanager than the agentof entrusted agency.Therefore，the behavior of a manager can be defined as fiduciary act with both contract obligation and statutory obligation，butmainly fiduciary obligation-duties of care and fidelity.So the management behavior requires prudence and fidelity.Though the transfer of fiduciary obligation is allowed in common law，in China，themanager should operate the business by himself instead of transferring it to a third party if the practice of trust is considered.The development of financial products should also be supervised to avoid obscurity，ambiguity and confusion.Themanager is obliged for the disclosure of information from interpretations be-fore signing an agreement and genuine information during the operation.The supervision of operation also includes supervision over accountmanaging and fees collecting and ensuring the nonoccurrence of prohibited behaviors.Once the manger violates above obligations，he should be liable. Key words:financial institutions，assetmanagementbusiness，unified supervision

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