1. Who are the participants in the contract?
Entrusted financial management is essentially an act of entrusted investment management or entrusted asset management. Some people propose to define the entrusted financial management contract as a contract in which the client delivers his funds to the manager, who invests the funds in securities, futures and other trading markets or manages them in other forms of financial management, and the profits are distributed by both parties according to the agreement or the manager collects management fees. The emphasis on the financial nature here is obviously based on the object and management mode of entrusted investment, rather than the main body of entrusted investment, and excludes non-financial economic and trade, industrial investment and its entrusted management.
The parties (subjects) of the entrusted financial management contract include the principal, the trustee and the third party. It has been suggested that clients include all kinds of legal persons, natural persons or other organizations, and managers are also relatively broad, including commercial banks, securities companies, futures companies, trust and investment companies, insurance companies, asset management companies, fund management companies, investment consulting (consulting) companies, corporate finance companies, wealth management studios, brokerages and other financial and non-financial institutions. Combined with the reality, there are several problems worth discussing.
(1) Whether the investment company and investment management company approved by the administrative department for industry and commerce are legal parties to the entrusted asset management contract. Although such companies do not have a financial name, if they engage in entrusted wealth management activities (commonly known as private equity funds) with the nature of financial investment, the entrusted asset management contract signed by them cannot be legally invalidated just because they do not have a financial exclusive license issued by the financial regulatory agency. In fact, with the development of the capital market, the number of such contracts is not only large, but also will continue to increase. Therefore, whether from the perspective of understanding reality or from the perspective of development, such subjects should be included. Investment companies mainly use their own funds to directly invest in financial securities and industries, and the minimum registered capital is 30 million yuan. Investment management companies are mainly engaged in investment management or entrusted investment management, with a minimum registered capital of 6,543,800 yuan, but foreign direct investment cannot exceed 50% of their net assets. Investment companies and investment management companies have the business scope approved by the administrative department for industry and commerce, and there is no need for pre-approval conditions when they are established. Its investment or entrusted management of investment is only a commercial behavior. The cooperation between the principal and the trustee is the cooperation of funds and information, capabilities and services. The sharing method is based on the voluntary and paid will expression and the determination of interest risk in the contract law, which is legal and legitimate. With the increase of the legal property of domestic residents and the diversification of the business scope of private enterprises registered for industry and commerce, this kind of investment behavior should be further encouraged.
(2) As trustees, institutions and individuals should have the qualification of entrusted investment management issued by relevant government departments (not just financial regulators). Just like foreign legislation and practice, no institution or individual may engage in entrusted investment management business without registration and approval, and any illegally established entrusted investment management institution shall be punished according to law.
(3) At present, the managers of financial management studios are diverse. Some are opened by branches or staff of securities companies. At this time, the manager should be a securities company; Some are rented by investment consulting (consulting) companies or individuals, and the manager should be relevant institutions or individuals; If it is established jointly or in name, or the name manager is inconsistent with the actual controller, the problem will be more complicated. It has been suggested that in the case that the real manager of entrusted financial management is unknown, all parties should provide evidence to prove the real manager. Here, I think the burden of proof should be mainly borne by the nominal manager.
It has been suggested that when there is a third person (supervisor) in the legal relationship of entrusted financial management, if the client jointly sues the manager and supervisor, the court will list the manager and supervisor as * * * co-defendants; If the client takes the administrator as the defendant and fails to list the supervisor as a third party to prosecute, or takes the supervisor as the defendant and fails to list the administrator as a third party, the court shall add the supervisor or the administrator as a third party.
Second, how to identify the legal relationship of the contract
In the international capital market, entrusted wealth management business is one of the important forms of asset management business, which is an organic unity and effective combination of customer capital appreciation and trustee high income. China's entrusted wealth management business originated from 1993, when the main customers were individuals. During the period of 1996- 1997, institutional investors, especially listed companies, began to get involved in a large number, and reached a climax in the first half of1999-200/kloc-0. In the meantime, the promulgation of the Securities Law and the Interim Measures for the Management of Securities Investment Funds has made it an important asset management business for securities firms, and other institutions have also participated in it. Since then, the continued downturn in the market has caused the entrusted wealth management business to fall into a trough. Many trustees who signed the guarantee clauses canceled the guarantee clauses after being hit hard, and the operation was not standardized, which led to a large number of entrusted financial management contract disputes.
Therefore, it has been suggested that the trial principles of entrusted financial management contract disputes should be: protecting the legitimate rights and interests of the parties and maintaining the order of the financial market.
If one of the parties to the entrusted financial management contract brings a civil lawsuit to the court on the grounds that the other party breaches the contract, violates the rules or violates the law, and the conditions stipulated in the Civil Procedure Law are met, the court will accept the case of the entrusted financial management contract dispute. It can be seen here: (1) There are both contract disputes and tort disputes in the entrusted financial management contract disputes, and there may even be two kinds of responsibilities competing, and the plaintiff can exercise the right to choose. (2) According to whether the ownership of the funds delivered by the client to the manager due to the entrusted financial management contract is transferred (that is, whether it is operated under the name of the client's account), the legal relationship is different, and the judicial interpretation should be refined. In my opinion, whether there is a guarantee clause or not, there is a principal-agent legal relationship between the principal and the manager who does not transfer the ownership of the funds, and the transfer of the ownership of the funds constitutes a de facto trust legal relationship between the principal and the manager. Therefore, two kinds of legal relations should be distinguished when trying disputes over entrusted financial management contracts.
Third, how to treat the effectiveness of safeguard clauses differently?
It has been suggested that the court should not easily invalidate the contract. If the manager has the qualification to engage in entrusted wealth management business or trust business approved by the financial administrative department, the court should invalidate the contract. Here, I think investment companies or investment management companies legally established with the approval of the administrative department for industry and commerce should not be excluded.
It has been suggested that the court can invalidate the entrusted financial management contract only under one of the following circumstances: one party concludes the contract by fraud or coercion, which harms the national interests; Malicious collusion, harming the interests of the state, the collective or the third party; Cover up illegal purposes in a legal form; Harm the public interest; Engaging in insider trading, market manipulation, high-interest deposits, money laundering and other financial violations, irregularities and criminal acts under the guise of entrusted wealth management contracts; Violation of mandatory provisions of laws and administrative regulations. The invalidity of the contract does not affect the validity of related securities, futures and other system transactions in the process of entrusted financial management.
It has been suggested that if the client and the manager agree in the entrusted financial management contract that the manager will guarantee the client's income according to the guarantee ratio agreed by both parties, and all the income other than the guaranteed income will be owned by the manager or distributed by both parties according to the pre-agreed ratio, the court should consider the guarantee clause invalid. If the administrator, supervisor or other third party provides a guarantee for the guarantee clause, the court shall deem the guarantee invalid. However, if the client and the manager agree in the entrusted financial management contract that the entrusted financial management income shall be distributed by both parties according to the pre-agreed proportion, the court shall deem it valid.
In my opinion, the above determination of the validity of the guarantee clause in the entrusted financial management contract is obviously correct under the condition of the principal-agent legal relationship. However, it is worth studying under the condition of trust legal relationship. If it constitutes a trust legal relationship, the trustee also has the qualification to engage in trust business approved by the financial administrative department, and because the ownership of funds has been transferred, whether there is a guarantee clause or not, it shall be deemed valid and handled according to the agreement of the entrusted financial management contract; On the other hand, if the trustee does not have the qualification of trust business, but the ownership of the principal's funds is transferred, the contract shall be deemed invalid, the trustee shall restore the original state, and be responsible for the consequences of the transfer of the ownership of the principal's funds.
Four, how to identify the fault and loss of civil liability.
It has been suggested that the administrator should bear the burden of proof for whether there is fault in the process of asset management and the causal relationship between its fault and the loss of entrusted funds. The supervisor shall bear the burden of proof on whether it violates the regulatory commitment and the causal relationship between the default fault and the loss of entrusted funds.
It has been suggested: (1) If the loss of entrusted funds occurs during the performance of a valid contract, it shall be handled according to the contract. If there is no agreement or the agreement is unclear, the parties to the contract shall bear corresponding civil liabilities according to their respective fault degrees. If there is no fault, the customer shall bear the loss of its assets. (2) If the entrusted funds are lost due to the invalidity of the contract, the civil liability shall be determined according to whether the parties are at fault, the nature and degree of the fault and the causal relationship between the fault and the loss. (3) If the guarantee provided by the guarantee clause is deemed invalid, the guarantor's liability shall be handled according to the judicial interpretation of the guarantee law of the Supreme People's Court. (4) If the supervisor violates the promise and causes the loss of entrusted funds, he shall bear the corresponding liability for compensation according to the degree of fault. (5) If the manager or supervisor misappropriates the entrusted funds or practices fraud, thus causing losses to the interests of customers, he shall bear corresponding liability for compensation or joint liability for compensation.
In order to accurately identify the faults of all parties, some people put forward several standards to list the faults of customers, managers and supervisors.
I think this standard is debatable. Due to the ever-changing objective reality, it is difficult to summarize all phenomena in law. It is better to abstract the judgment principles than to determine specific judgment standards. In my opinion, when considering the standards of civil liability and fault judgment, we should first consider whether the subject is the manager and supervisor, whether it has professional investment entrustment management qualification, whether it has transferred the ownership of the client's funds, whether the contract is valid, whether the contract has guarantee clauses, etc. These are all considerations that appropriately aggravate the fault liability.
It has been suggested that the loss range of the funds entrusted by customers should be limited to the actual loss. Among them, when the contract is valid, the actual loss shall be subject to the difference loss of the entrusted funds; When the contract is deemed invalid, the actual loss scope includes the loss of the entrusted fund balance, transaction costs, commissions, taxes and interest (calculated at the bank deposit interest rate for the same period from the entrusted delivery date). The so-called difference loss of entrusted funds is the difference between the amount of entrusted funds actually delivered by customers and the balance of entrusted funds after the manager's last financial management behavior. In addition, when the contract is deemed invalid, the income obtained by the customer during the entrusted financial management can offset the compensation amount of the manager or supervisor.
(Member of the newspaper's volunteer group for investor rights protection, lawyer Song Yixin of Shanghai Wen Da Law Firm)