Financial entrusted financing, also known as entrusted financing by financial institutions, refers to the form of entrusted financing in which customers hand over assets to financial institutions and financial institutions act as trustees. In China, financial institutions engaged in entrusted financial management mainly include commercial banks, securities companies, trust companies, insurance companies and fund companies.
Private entrusted financial management, also known as entrusted financial management by non-financial institutions, refers to the form of entrusted financial management in which customers entrust their assets to non-financial institutions or natural persons such as asset management companies, investment consulting companies and general enterprises and institutions, and non-financial institutions serve as trustees.
Entrusted financial management contract is a kind of entrusted contract and also entrusts others to do things. The key to distinguish the two types of causes of action lies in grasping the particularity of entrusted financial management contracts. The most fundamental difference between them lies in the subject matter of the contract, and the entrusted affairs in the entrusted financial management contract are limited to entrusted financial management on behalf of the trustee.
The subject matter of the entrustment contract is much broader. China's civil law does not clearly stipulate the scope of entrusted affairs. Therefore, as long as it can produce any civil rights and obligations, including buying and selling, leasing, registration, approval, agency litigation, etc. It is generally believed that the subject matter of the entrustment contract also includes the implementation of factual acts on behalf of others, such as helping to get express delivery on behalf of others. It can be seen that the scope of entrusted affairs is very wide, except for matters that cannot be entrusted according to the law or public order and good customs, and matters that cannot be entrusted according to the nature of the affairs themselves (such as adoption of children, marriage registration, etc.). ), can be entrusted to others. Therefore, if the entrusted business is financial management, the entrusted financial management contract dispute is applicable, not the entrusted contract dispute.
In addition, there are the following significant differences between them. Specifically includes the following aspects:
(1) Whether to pay. Entrustment contract is a traditional civil contract and a famous contract clearly stipulated in the Civil Code. It can be a paid contract or a free contract. Entrusted financial management contract is a new type of financial contract, and the trustee is often a professional financial institution, which obtains remuneration or income through financial management on behalf of customers. (2) The establishment of the contract. Entrustment contract is a kind of commitment. The entrusted financial management contract is anonymous and lacks direct legal basis, but it is generally considered as a practical contract, and the contract is established when the trustee delivers the funds or securities. (3) Whether a third party is involved. Entrustment contracts generally do not involve third parties, and there are usually third-party supervisors in entrusted financial management contracts. (4) bear the consequences of entrustment. The general principle of entrustment contract is that the client should bear the consequences of handling affairs. In the entrusted financial management contract, both parties often agree that the client will not bear the losses caused by the trustee's financial management behavior.