Legally speaking, a futures broker is an individual or legal person who introduces or provides signing opportunities for investors or futures companies.
Its main function is to act as an intermediary when investors sign brokerage contracts with futures companies. Its intermediary behavior refers to reporting the information of concluding a contract or providing media services for concluding a contract. However, in the actual futures market, futures brokers not only do intermediary introduction, but also engage in futures trading activities including investment consulting and trading agency.
Its legal responsibility is mainly manifested in that the futures broker shall truthfully report the true situation of both parties and the relevant matters concerning the conclusion of the brokerage contract, and shall not conceal it. Otherwise, if the principal's interests are harmed by deliberately concealing important facts related to the conclusion of the contract or providing false information, he shall not only have the right to demand payment from the principal, but also be liable for damages.
Measures for the administration of futures brokers
Chapter I General Provisions
Article 1 In order to standardize the brokerage behavior of futures brokers, safeguard the legitimate rights and interests of all parties to futures trading, maintain the order of futures market, control market risks and promote the healthy development of futures market; According to the Provisional Regulations on the Administration of Futures Trading, the Code of Conduct for Futures Practitioners and Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Futures Disputes, these Measures are formulated.
Article 2 These Measures are the basis for the Company to determine the identity of intermediaries and the rules and regulations that the futures intermediaries of the Company must abide by when engaging in intermediary business. Applicable to intermediaries engaged in futures trading intermediary business in our company.
Chapter II Determination of the Identity and Behavior of Intermediaries
Article 3 Intermediary behavior refers to reporting the information of concluding a contract or providing intermediary services for concluding a contract. Futures broker, also known as futures broker.
Account manager refers to a natural person or organization that is independent of the company and customers, accepts the entrustment of the futures company, and independently bears the civil liability arising from the intermediary legal relationship.
Article 4 Intermediaries have no affiliation with futures companies. A broker is not a party to a futures brokerage contract concluded by a futures company.
Article 5 Employees of a futures company shall not become intermediaries between futures companies and other futures companies.
Chapter III Rights and Obligations of Intermediaries
Article 6 Rights of intermediaries:
1. Provide opportunities or intermediary services for futures companies to conclude futures brokerage contracts according to the stipulations of intermediary contracts.
2. The intermediary has the right to obtain the remuneration from the company for engaging in intermediary activities in accordance with the contract.
Article 7 Obligations of Intermediaries:
1, abide by national laws, regulations and policies.
2. Refer to the code of conduct for futures practitioners.
3. Abide by the relevant rules and regulations of the futures company.
4. Comply with the intermediary service guidelines:
Principle of loyalty: We must abide by the principle of good faith, faithfully perform intermediary obligations, actively promote futures brokerage contracts between investors and futures companies, and must not hinder the signing activities between investors and futures companies, nor harm the legitimate rights and interests of investors.
Disclosure obligation: truthfully inform investors about matters related to signing contracts, especially about risks in futures trading, such as providing risk disclosure. And do not deliberately conceal the risks of investing in futures or deliberately expand the benefits of investing in futures, do not make false and misleading advertising, and do not engage in fraudulent activities.
Omission criteria: Units and individuals specified in Article 30 of the Interim Regulations on the Administration of Futures Trading shall not introduce or provide opportunities to sign futures brokerage contracts.
Prohibition of ultra vires agency: brokers only provide "information on concluding contracts or provide intermediary services for concluding contracts"; Have no right to act as an agent to sign futures brokerage contracts; Have no right to sign monthly transaction bills, issue transaction instructions on behalf of customers, and allocate funds on behalf of customers.
Confidentiality standard: Brokers shall keep business secrets for futures companies as agreed, and keep business secrets and personal privacy for investors, and shall not disclose them.
Real-name registration system Principle: When a broker engages in futures brokerage activities, he shall not conceal his identity.
Chapter IV Management of Intermediaries
Article 8 The daily work of all intermediaries of the company is managed by the marketing headquarters, and the files are managed by the marketing headquarters of the company in a unified way, and the General Department keeps records.
Article 9 The company shall confirm the true identity of the broker and require the broker to provide detailed personal information. Materials that brokers need to provide: personal profile, including detailed mailing address, contact number, work experience, etc. ; Copy of ID card, etc.
Article 10 An intermediary institution may engage in intermediary business only after signing an intermediary contract with the Company, and accordingly exercise relevant rights, undertake relevant obligations and be bound by relevant systems.
Article 11 Intermediary contracts are intermediary and paid. Intermediary contract and futures brokerage contract are two independent contracts.
Article 12 A company shall support intermediaries to expand their business.
Article 13 The company shall set up archives of intermediary institutions and register the intermediary institutions and the clients introduced by them separately.
Chapter V Broker's Liability and Punishment for Breach of Contract
Article 14 If a broker commits one of the following acts, the company has the right to unilaterally terminate the brokerage contract:
1. illegal fund-raising or disguised financing by using the identity of futures broker.
2. Engage in brokerage activities other than futures intermediaries in the name of futures intermediaries.
3. Provide customers with profit guarantee or * * * take risks.
4. Provide centralized trading places for customers and set up business service outlets in the name of the company.
5. Other acts that violate laws, regulations and relevant rules and regulations and harm the interests of the company and customers.
Fifteenth intermediaries should be in accordance with the provisions of self-discipline management. If there is any dispute, the company should communicate with investors in time and actively solve it. If the intermediary contract and relevant regulations are violated, causing serious consequences, in addition to assuming corresponding responsibilities, the company will notify the industry through the website of China Futures Association, and at the same time file with the regulatory authorities, requiring them to take necessary measures to regulate according to law.
Chapter VI Supplementary Provisions
Article 16 These Administrative Measures shall be formulated and interpreted by Zhejiang yongan futures Brokerage Co., Ltd.
Necessity of the existence of futures intermediary
(A) the necessity of the existence of natural person intermediaries
1. The actual situation of the futures market determines that it is still necessary for natural person intermediaries to exist in the future. The futures market is an important part of the capital market. In the developed futures market, there are not only futures commission brokers (FCM), but also introduction brokers (IB), commodity trading consultants (CTA), commodity joint venture funds (CPO) and other forms to serve investors and cover many aspects of the futures market. At present, the public's understanding of futures varieties and trading systems in China is far less than that of stocks, bonds and funds, and futures operating institutions are far less than securities companies, banks and other institutions in the number and coverage of outlets. Due to the relatively weak market development, many futures companies are trying to find a way to expand their business with wide coverage and low cost, and natural person intermediaries are undoubtedly a good choice.
In addition, in China, futures intermediary is associated with futures trading, which has developed to this day. Most domestic futures companies still rely on intermediaries for business development, and only a few companies rely entirely on employees for market development.
2. Natural person intermediaries play a certain role in assisting futures companies in advertising and business development, and alleviate the contradiction of information asymmetry between futures companies and investors in the futures market. For a long time, due to the economic strength of futures companies and other reasons, the publicity and promotion of investors is not strong, and many investors have relatively limited information about futures companies and futures markets, which makes it difficult for both parties to conclude futures contracts. Futures intermediaries can provide the best service for both parties to the transaction, mediate between futures companies and investors, convey their wishes, play the role of bridge and matchmaking, effectively alleviate the contradiction of information asymmetry between futures companies and investors, and shorten the choice between investors and futures companies. Intermediaries have a wide range of radiation, using their own resources to promote futures varieties and develop customers on behalf of the company, thus forming a multi-level market development network, providing a large number of customer resources for the company and establishing the company brand among investors.
3. The natural person intermediary enriches the investor service system in the futures market and can better provide personalized services for customers. Futures companies can provide a series of standardized follow-up services for all customers. However, due to the constraints of laws and regulations, the strength of companies and other reasons, most domestic futures companies provide similar services to investors, which cannot meet the individual requirements of investors. In this regard, intermediaries can provide such services to customers more flexibly and individually, and the one-to-one approach is more suitable for small and medium-sized customers in the futures market. Personalized service has left a broad stage for natural person intermediary.
Under the background of increasingly refined social division of labor, entrusting some market development business to natural person intermediaries can enable futures companies to concentrate their manpower and material resources on system maintenance, research and development, consulting services and risk management, which is conducive to improving efficiency and optimizing the futures market structure.
(B) the necessity of the existence of institutional intermediaries
Compared with natural person intermediaries, institutional intermediaries have more extensive information resources, stronger market development and customer service capabilities, and have stronger competitiveness in highly differentiated financial markets. Especially in the case that relevant laws and regulations confirm and standardize institutional intermediaries, mature institutional intermediaries have more advantages than natural person intermediaries in terms of anti-risk ability and integrity, and are more conducive to the smooth operation of the futures market.
At the same time, the institutional intermediary system will be conducive to the improvement of the self-discipline system and the integrity system of the futures market, thus promoting the establishment of futures appraisal companies. Because of its independent intermediary status, futures appraisal companies can objectively evaluate the competitiveness of futures exchanges, futures companies and futures trading varieties, which can help investors understand the futures market, reveal futures risks, find investment opportunities and participate in futures trading. Through objective and fair evaluation, it plays the role of a "goodwill third party". On the one hand, it guides investors to conclude contracts with futures companies with good credit, standardized operation and rich management experience, on the other hand, it provides services for investors with poor credit and poor management experience. This is conducive to strengthening the supervision of futures exchanges and futures companies, improving the self-discipline system of futures industry and establishing the integrity culture of futures industry.
(3) Feasibility study on allowing only natural person intermediaries or institutional intermediaries to exist.
At present, futures companies mainly rely on natural person intermediaries to expand their business, and many futures operating institutions (including all companies and business departments in my jurisdiction) have no institutional intermediaries. In China, institutional intermediaries are basically in the early stage of development, and their legitimacy is still unclear, so futures companies are more inclined or accustomed to cooperating with natural person intermediaries. Even if natural person intermediary is not allowed in laws and regulations, it is still difficult to put an end to this kind of intermediary in practice. For example, when dealing with accounts, futures companies can pay commissions in the form of various fees. Therefore, it is not feasible to cancel the natural person intermediary at present.
As a product of the development of China's futures market, institutional intermediaries have promoted the further division of labor in the futures market. If the ban is in its infancy, it will affect the operating efficiency and long-term development of the futures market. Moreover, the outstanding advantages of institutional intermediaries in customer resources, market development and customer service will inevitably make futures companies consider or attach more and more importance to cooperation with them. Even if the legal level does not allow institutional intermediaries to exist, it is still possible for futures companies to achieve business introduction and commission rebate with relevant institutions by circumventing policies. For example, consulting companies engage in intermediary business in the name of their staff and collect commissions. Therefore, it is not feasible to ban institutional intermediaries at present.
(four) the possible impact and problems of natural person intermediaries and institutional intermediaries on the futures market.
On the premise of effective regulation and management of natural person intermediaries and institutional intermediaries, the parallel operation of these two forms of intermediaries will have the following effects on the futures market:
1, the legitimacy of institutional intermediaries will be recognized, which will gain opportunities for rapid development and be conducive to the gradual optimization of the structure of futures intermediaries.
2. The futures company will get a partner with a certain scale and standardized operation, and both parties can also guarantee the stability of the intermediary relationship through the intermediary contract.
3. The above two changes will accelerate the process of specialization, scale and modernization of the futures industry and further improve the operating efficiency of the futures market.
At the same time, in the case of allowing institutional intermediaries to exist, there may be cases where customers designate the staff of institutional intermediaries as agents to place orders, and institutional intermediaries may form disguised private equity funds, which will greatly exceed the scale of funds that natural intermediaries can control as agents to place orders, and new problems and difficulties may arise in supervision. In addition, when there is a dispute between the customer and the agent (that is, the staff of the agency), the legal liability will become very complicated.
Research on natural person intermediary
(A) the main problems of natural person futures intermediaries
After the implementation of opening an account in real-name registration system, the illegal money laundering purpose of signing false contracts by intermediaries has been greatly curbed. At this stage, natural person intermediaries mainly have the following problems in practice:
1, concealing identity and misleading customers. When developing customers, some intermediaries privately print business cards, falsely claiming that they are the staff of futures operating institutions, and even set up illegal outlets in the name of futures operating institutions to gather customers for futures trading, which confuses customers' cognition of their true identity. In particular, some intermediaries have offices in futures trading institutions, which is more likely to cause customers to misunderstand their identity. Once the customer suffers serious losses, or the broker's commitment to its profit is not realized, it is easy for the customer to file a lawsuit against the futures operating institution instead of the broker, and the company will bear the litigation risks such as agency by estoppel.
2, malicious transactions, against the interests of customers. The broker's main remuneration comes from the commission returned according to the customer's handling fee. In the case that the middlemen are appointed by the customers as the agents to place orders, some middlemen conduct daily transactions and maliciously speculate on orders for their own interests without the customers' knowledge, resulting in the infringement of the customers' interests.
3. It will lead to vicious commission competition and damage the overall interests of the futures industry. With the intensification of competition in the futures industry, the management policies of many futures companies have changed from developing customers to developing brokers, and from fee competition to commission competition. Intermediaries with many customers and large turnover can even account for more than 80% of the net fee income of futures companies, which greatly affects the profitability of futures companies, resulting in the company's inability to improve facilities, reserve talents and improve service levels, thus affecting the overall development of the futures industry.
(2) The intermediary status of natural persons has changed to that of entrusted agents.
In futures brokerage contracts, a considerable proportion of subscribers are the middlemen of customers. Even if the law prohibits intermediaries from becoming customer agents in the future, in practice, this phenomenon can only be eliminated from the futures brokerage contract level, but not from the actual operation level. Nowadays, online trading has become the main way of futures trading. If the customer entrusts others to trading agent, he only needs to give the transaction password to others. However, neither the futures company nor the regulatory authorities know the authorization stipulated in this non-futures brokerage contract.
(3) Business forms of natural person intermediaries
In practice, the main business forms of natural person intermediary are contract intermediary and transaction agent. Before opening an account in real-name registration system, some intermediaries may open an account on behalf of customers in some form. In addition, there may be cases where intermediaries sign profit commitments or income distribution agreements with customers privately.
All futures operating institutions within their jurisdiction generally put an end to the situation that when signing futures contracts, they designate intermediaries as agents to place orders, allocate funds and confirm transaction results, and specifically require customers not to fill in intermediaries in the column of fund allocator. However, this practice cannot rule out that natural person intermediaries still accept the full authorization of customers. The new contract of a futures company often stipulates that the futures company will complete the obligation of informing by sending the trading results to the margin monitoring center. As long as the customer informs the broker of the transaction password and the fund transfer password, the broker actually constitutes a full agent.
(D) The positioning differences between natural person intermediaries and employees of companies engaged in customer development.
In the futures companies that completely adopt the company development model and adopt the mixed model of company development and intermediary development, the practitioners engaged in market development are different from intermediaries. These employees sign labor contracts with futures companies and receive basic salary (basic salary) from the company every month. However, there is no labor contract between brokers and companies, and the funds obtained from futures companies are commissions. Of course, the staff engaged in market development of futures companies will also get bonuses linked to the cumulative transactions of customers, but they are far lower than the commission ratio of intermediaries. Moreover, most futures companies distribute their employees' market development bonuses according to grades, rather than directly proportional distribution.
(five) the management of futures institutions to natural person intermediaries in different places.
There are two main modes for futures operating institutions in the jurisdiction to manage intermediary institutions in different places. One is that the headquarters of the futures company signs an intermediary agreement with the intermediary agency, stipulating that the company has some management rights over the intermediary agency to ensure that the company can control the intermediary agency to a certain extent; Second, the futures company has established a loose cooperative relationship with the brokerage firm, and the person in charge of the business department enjoys greater rights over the brokerage commission standard, but the company is responsible for commission accounting and distribution. Only one business department within its jurisdiction adopts the first mode, and other futures operating institutions adopt the second mode.
(six) the composition and source of the interests of natural person intermediaries.
According to the survey, brokers don't get commissions just because they introduce customers to open accounts. Only when the customer has a transaction, the futures operating institution will pay the brokerage commission according to a certain proportion of the customer's net fee income. In terms of the payment method of commission, futures operating institutions either enter it in the name of wages, or deal with it in the form of handling fees, or combine the above two practices.