2. In terms of the qualification standards of natural person intermediaries, it is suggested to adopt a differentiated system, that is, to set different qualification conditions for intermediaries who simply engage in intermediary business and intermediaries who engage in futures trading on behalf of customers in legislation. Both qualifications can be obtained, but they need to be approved separately.
(1) Intermediary qualification only engaged in intermediary business. The requirements for intermediary agencies that only engage in intermediary business can be relatively relaxed, which should include: first, setting natural conditions (including nationality and ability, etc.). ) and their academic qualifications; Secondly, it is clear whether the middleman must be full-time; Third, it is forbidden to be recognized, that is, it cannot be stipulated by the staff of the CSRC, futures exchanges, futures industry associations and futures companies; Finally, within a certain period of time, there is no certain degree or nature of illegal acts and bad credit records.
(2) The qualification of an intermediary agency that engages in futures trading on behalf of clients. The requirements for intermediaries who trade futures on behalf of customers must be stricter. First of all, higher professional standards are needed. Higher professional qualification certificates should be set up for such intermediaries to ensure that they have sufficient futures knowledge and analytical ability to make reasonable investment decisions on behalf of customers. The second is the requirement of work experience. If you have more than 5 years of futures experience. The third is the requirement of full-time agency. In order to ensure that intermediaries can make and implement investment decisions that are beneficial to customers' interests, it is necessary to ensure that they have enough working hours and special energy to track the market and analyze trends at any time. The fourth is the strict prohibition conditions. For example, the scope of dishonest records can be extended to other financial fields and freelance fields (accountants and lawyers) other than securities and futures. In addition, we can also consider whether to set different requirements according to the types of futures business when formulating laws and regulations, such as putting forward stricter requirements for natural person intermediaries engaged in financial futures trading agents. In view of the fuzziness of the legitimacy of agency intermediary and various problems and hidden dangers existing in its practice, it should be included in the qualification management sequence from the perspective of future development.
The business qualification of agency intermediaries is issued by the China Securities Regulatory Commission and its dispatched offices. Incorporate institutional intermediaries into the qualification management sequence, classify them according to different business scope, and issue corresponding qualifications. Such as separation business, agency business, self-operated business, futures fund business, overseas futures business, etc. , set different qualification restrictions and supervision methods. On this basis, we can also consider further differentiation according to commodity futures, financial futures and other businesses. The problems existing in the practice of agency intermediary are mainly divided into three categories:
1, legal dilemma. Institutional intermediaries still lack clear legal support. Although it is mentioned in the judicial interpretation that intermediaries can be legal persons, it is not clear whether intermediaries without legal personality can exist (such as partnerships), whether all operating institutions with legal personality can engage in futures intermediation, and whether institutional intermediaries must be institutions specializing in intermediary business. Therefore, futures companies will have some concerns when they cooperate with institutional intermediaries.
2. Fiscal and tax confusion. If the agency acts as an intermediary, the commission should naturally be remitted directly to the intermediary's account, but the futures company is not sure how this fee should be calculated and whether it can be charged before tax, and there are no relevant regulations on the financial and tax payment of the intermediary income of the intermediary.
3. Institutional intermediary's own problems. First of all, the scale of institutional intermediaries is small (for example, the registered capital of consulting companies is usually low) and their ability to resist risks is weak. Secondly, many institutions engaged in futures brokerage business have a low professional level, and the staff engaged in brokerage business do not have futures qualifications, so the service quality after opening an account needs to be improved. Thirdly, the lack of standardized supervision mode and institutional arrangements is prone to problems such as carte blanche or promising profits to customers. In addition to providing signing opportunities for customers and companies, the staff of agency intermediaries can also conduct transactions on behalf of customers. Some institutional intermediaries also provide customers with market information, trading equipment or investment consulting. In addition, the agency intermediary may also sign a profit commitment or income distribution agreement with the customer privately, or accept full authorization.
Identity conversion problem
Like natural person intermediaries, in practice, it is impossible to strictly stop the institutional intermediaries from changing from intermediary status to customer agent status, and there may be cases where customers and staff of institutional intermediaries jointly fill in the relevant authorization clauses of futures brokerage contracts. Once there is a dispute between the customer and the intermediary, it is difficult for the regulatory authorities or the court to determine that the entrusted staff is trading on behalf of the company, and the agency intermediary may evade legal responsibility.
Therefore, if the agency intermediary is allowed to become a trading agent at the same time, the relevant operational details should be clarified when formulating normative legal documents or contract guidelines in the future.
Differences in agency behavior
In the case of allowing agency agencies to engage in agency business, the difference between the intermediary business of agency agencies and the brokerage business of futures companies and the secondary agency behavior.
When the agency business is allowed, there is still a difference between the agency business and the brokerage business of futures companies. First of all, futures brokerage contracts cannot be concluded between institutional intermediaries and their customers. Secondly, institutional intermediaries may not open capital accounts for customers in this institution. Thirdly, institutional intermediaries cannot become members of the futures exchange, and can only use the trading system of futures companies to send trading instructions to the trading platform of the exchange for trading. Finally, the institutional intermediary is not qualified for settlement, and the futures exchange cannot directly settle with the institutional intermediary.
The secondary agent in the futures industry used to mean that institutions other than futures companies opened accounts in futures companies in their own names, directly collected deposits from customers and deposited them into accounts for trading. At the same time, institutions place orders on behalf of customers and directly settle customers. The difference between institutional intermediary and secondary agent: First, the clients developed by institutional intermediary directly sign futures brokerage contracts with futures companies. Secondly, customers have special fund accounts in futures companies, and funds are not allocated through intermediaries. Thirdly, futures companies directly settle accounts with customers. Finally, institutional intermediaries do not have an independent trading system.
Coordination with other market entities
Coordination between institutional intermediaries and other market entities, whether there is illegal financial management behavior.
1, the relationship between institutional intermediaries and futures companies is coordinated. The relationship between institutional intermediaries and futures companies is business cooperation, that is, intermediary relationship. The rights and obligations between them can be determined through the normative documents formulated by the CSRC and China Futures Association or the intermediary agreement reached by both parties.
2. The relationship between institutional intermediaries and investment consulting institutions and asset management institutions. Through the normative documents formulated by the CSRC, the main qualifications of institutional intermediaries are stipulated, so as to clarify whether investment consulting institutions, asset management institutions and trust financial institutions can become institutional intermediaries.
In reality, institutional intermediaries are likely to conduct illegal financial management by letting their employees accept the full authorization of customers or agreeing to share benefits with customers. In addition, some institutional intermediaries are likely to open accounts in futures companies directly in their own names and use the funds raised from customers for futures trading.
remote administration
Compared with natural person intermediaries, futures companies should be more strict in the management of off-site intermediaries. Institutional intermediaries are managed by futures companies in a unified way. Futures companies should directly sign intermediary agreements with institutional intermediaries to ensure that the headquarters of the company can clearly understand the necessary information of institutional intermediaries, and clearly stipulate important matters such as identity disclosure, risk disclosure, commission ratio and cooperation period through the agreement to avoid unnecessary disputes that may occur in the future. The management of agency intermediary by the company headquarters should also include the accounting and payment of commission.
As the marketing terminal of futures companies, institutional intermediaries are different from illegally operating futures outlets in the following aspects: First, institutional intermediaries are legally established operating institutions, and should conduct business in legal business premises, with intermediary business licenses issued by CSRC or associations and business licenses issued by industrial and commercial administrative departments. Illegal outlets do not have these two licenses. Second, institutional intermediaries must be separated from futures companies in terms of personnel. Third, in order to distinguish it from illegal outlets, intermediaries must assist in handling futures business within the scope permitted by laws and regulations, and cannot handle account opening procedures on behalf of customers. Once the "futures broker" in the relevant legislation is changed to "futures broker" and the business scope of futures brokers is extended to trading agents, we can consider allowing institutional intermediaries to provide futures market information and trading facilities to customers.
Composition and source of interests
The profit composition of institutional intermediary is basically the same as that of natural person intermediary. In terms of profit sources of agency intermediaries, relevant laws and regulations should stipulate the commission realization method and tax calculation method of agency intermediaries.