Entrusted financial management means that the property owner, as the entrusting party, entrusts funds or securities to professional investors to manage them under specific conditions; the professional investors, as the trustee, manage independently within a certain period of time and dispose of the entrusting party’s property.

In order to regulate entrusted financial management, the China Securities Regulatory Commission has successively issued the "Notice on Regulating the Entrusted Investment Management Business of Securities Companies" and the "Interim Provisions on the Entrusted Asset Management Business of Fund Management Companies (Draft for Comments)", the Chinese People's The bank also promulgated the "Interim Measures for the Trust Management of Funds of Trust Investment Companies". However, neither "entrusted investment management", "entrusted asset management" or "fund trust" can accurately reveal the legal attributes of entrusted financial management. How to define the legal nature of entrusted financial management directly affects the definition of the rights and obligations of the client and trustee and the risk-taking of entrusted financial management, so it is of great significance in judicial practice. The author believes that based on "whether the assets are transferred" and "the name of the investor used in the transaction", entrusted financial management can be divided into trust-type entrusted financial management and entrusted-agent type entrusted financial management.

According to Article 2 of the "Trust Law", a trust means that the trustor entrusts his property rights to the trustee based on his trust in the trustee, and the trustee entrusts his property rights to the trustee in his own name according to the wishes of the trustor. The act of managing or disposing of a property for the benefit of the beneficiary or for a specific purpose. Doctrine also points out that there are three requirements for the validity of an express trust:

First, the intention to establish the trust is expressed, that is, the trustor divides its property ownership into two, and the trustee obtains the "nominal ownership" "In order to facilitate management and disposal, the beneficiary obtains "substantial ownership" in order to enjoy the benefits;

The second is to transfer the ownership of the trust property to the trustee;

The third is that the trust must not violate the law Mandatory regulations and public order and good customs (i.e. the principle of legality of trust).

According to this, entrusted financial management that meets the two conditions of "the client transfers the assets to the trustee" and "the trustee manages and disposes of the assets in his own name" is called trust-type entrusted financial management. ; As for the contract establishing trust-type entrusted financial management, its nature should be regarded as a trust contract. Specifically, if the principal and the trustee agree in the entrusted financial management contract that the principal will directly deliver funds, securities, etc. to the trustee, and the trustee will manage them in his own name and engage in investment and business activities, then the contract is Trust Contract.

On the contrary, if the entrusted financial management does not meet the two requirements of "the client transfers the assets to the trustee" and "the trustee manages and disposes of the assets in his own name", then a trust relationship cannot be established. In practice, some entrusted financial management contracts stipulate that the client opens capital accounts and stock futures trading accounts in his own name, and the trustee uses the client's accounts to engage in investment and business activities; other entrusted financial management contracts stipulate that although the client will Funds or securities are transferred to the trustee, but the trustee must conduct management and investment transactions in the name of the principal. The essence of the above-mentioned entrusted financial management contract is that the trustee performs civil legal acts in accordance with the entrustment of the principal, and the consequences are borne by the principal. Therefore, this type of entrusted financial management contract should be recognized as an entrusted financial management contract, and this type of entrusted financial management can be called agency-type entrusted financial management.

In addition, some entrusted financial management contracts stipulate that the trustee will invest a certain amount of its own assets into the securities and futures market together with the entrusted assets, and share the investment income and risks with the client in a specific proportion - It is worth exploring whether it is appropriate to characterize this kind of entrusted financial management as a partnership (hidden partnership). The author believes that the core of entrusted financial management lies in the management of property, rather than operating a business together; although the trustee also invests a certain amount of his own assets, this is only his personal investment behavior and is different in nature from financial management on behalf of others. behavior, and in accordance with relevant regulations, the operation of the trustee's inherent assets and the entrusted assets should be managed in separate accounts, which shows that although the trustee's personal investment and entrusted financial management are carried out at the same time, they are two different civil legal acts; the so-called client and trustee Sharing income and risk is actually nothing more than that both parties enjoy investment income and bear investment risks on their respective assets; even if the trustee additionally promises to bear all or part of the investment risks for the client, it is nothing more than a special way of entrusting financial management risk-taking. Agreement. Therefore, even if the trustee invests its own assets, the entrusted financial management it engages in should still be divided into trust-type entrusted financial management and entrusted-agent financial management based on "whether the assets are transferred" and "the name of the investor used in the transaction". There is no The so-called "partnership entrusted financial management".