Financial entrusted financing is also different from the usual investment behavior, which is an investment in virtual markets such as securities and futures, and has the characteristics of high risk and high income. Because most entrusted financial management contracts have guaranteed clauses, what is the legal relationship contained in entrusted financial management contracts is a controversial issue in itself. It is not a scientific and objective attitude to frame such a new commercial contract with dual functions of financing and fund management simply by entrustment contract or trust contract, or to define it as a famous contract in China's contract law. Therefore, in the trial practice, there is no reason for us to explain the entrusted financial management contract with the attributes of the entrusted contract or investment behavior, and to determine that the guarantee clauses agreed by the parties in the contract are invalid.
(2) Up to now, the prohibitive provisions of Chinese laws and regulations on entrusted financial management can only be found in Article 144 of the Securities Law, which stipulates that "a securities company shall not make a commitment to its clients' securities trading gains or make compensation for securities trading losses in any way". However, according to the system interpretation method, from the provisions of Articles 194, 143 and 144 of the Law on Violation of Legal Liability, it is forbidden to accept sole authorization and promise to guarantee income only for the brokerage business of securities companies. Other provisions prohibiting guarantee are mainly reflected in the regulations of the People's Bank of China, such as Article 31 of the Measures for the Administration of Trust and Investment Companies and Article 4 of the Interim Measures for the Management of Funds of Trust and Investment Companies. Obviously, these provisions are made from the aspect of strengthening the risk management of trust and investment companies, and the actual operation of trust and investment companies and the supervision of the People's Bank of China do not strictly abide by the above provisions. The people's court can only determine the validity of the contract on the basis of laws and administrative regulations, and obviously laws and administrative regulations cannot be used as the basis for determining the invalidity of the contract.
(3) In the entrusted financial management relationship, due to the lack of professional knowledge of the client and the contractual agreement that the trustee is solely responsible, the trustee's independent will and entrusted authority have been greatly expanded. While enjoying greater power, according to the principle of consistency of powers and responsibilities, we should of course bear greater responsibilities. Judging from the relief channels of clients' rights and interests, the professional knowledge of trustees in the investment field is stronger than that of clients, and they are in a practical advantage position. If there is a dispute, it is not easy for the client to prove or determine whether the trustee is at fault. In addition, there are still some problems in China's securities market, such as insufficient information transparency and more malicious losses. The guarantee clause provides a rigid constraint for solving the problem of entrustment cost, which is conducive to urging the trustee to be diligent and dedicated and preventing moral hazard.
Although from the perspective of maintaining the security of financial institutions, adopting a limited recognition attitude towards the guarantee terms will play a certain role in balancing the interests of listed companies as clients of huge entrusted financial contracts and securities companies as trustees. However, due to the lack of legal support, this view has a fatal negative impact from the perspective of establishing the credit of financial institutions and maintaining the order of the national financial market. Obviously unfair refers to the imbalance between the rights and obligations of both parties when a contract is signed. We can't ignore the high returns from investing in the stock market in 2006 and 2007, but it's obviously unfair to infer the guarantee clause only based on the huge losses caused by the stock market downturn in these two years.
It is common sense to invest in the securities market with high risks and high returns. It is more convincing to interpret the imbalance between the rights and obligations of the parties to the contract caused by the cyclical ups and downs of the stock market as a normal business risk, thus excluding the application space of the principle of changed circumstances. As for referring to the provisions of the contract law on reducing liquidated damages and only protecting the legal interest rate income, it actually regards entrusted wealth management as savings, which is not in line with the purpose of the market to promote entrusted wealth management as a financing investment method.