The futures market has always been a cruel place, and it is really not suitable for most retail investors. It is reasonable to manage money on behalf of customers. However, at present, due to the lack of policies and regulations, many valet financing agreements are in the gray area on the edge of the law, lacking due access threshold and supervision, and it is difficult for many valet financing agreements to be recognized and protected by law. Many netizens who come to He Xun Futures Forum hope to find experts here to help them, but cheating or agreement disputes happen from time to time, and often many people are caught off guard.

The stock market ebbs and flows, and the disputes caused by entrusted financial management are also endless, and they appear in large numbers with the violent fluctuations of the market, which has become a headache for investors. This paper attempts to help investors safeguard their legitimate rights and interests from the perspectives of the subject, form, nature and judicial practice of entrusted financial management.

First, the concept and subject of financial management on behalf of customers

Entrusted financial management, also known as valet financial management, is a different name for the same business from the perspective of the entrusting party and the management party. Entrusted financial management refers to the behavior of professional managers who accept the entrustment of asset owners to manage assets on their behalf in order to realize the appreciation of entrusted assets or other specific goals. Generally speaking, entrusted financial management in the securities market means that the trustee raises and manages entrusted funds with an independent account and invests in the portfolio of financial instruments such as stocks, funds, bonds and futures in the securities market to realize the appreciation of entrusted funds or other specific purposes.

With the social division of labor becoming more and more detailed, the investment fields such as securities, stocks and futures are becoming more and more specialized. Because of their own energy and professional knowledge, it has become a common phenomenon for investors to entrust professionals and institutions to help with investment and financial management. In practice, one party entrusted with financial management is an investor, while the other party entrusted often has the following subjects:

1, securities company, trust company

In China, securities companies and trust companies are professional entrusted financial institutions. It should be noted that not all securities companies are qualified to entrust financial management. For example, a securities company with a registered capital of 50 million yuan to 654.38+0 billion yuan can engage in securities brokerage and securities investment consulting business, but cannot engage in investment entrusted wealth management business. According to the provisions of the CSRC on risk control and internal control, branches (business departments) are prohibited from engaging in asset management business. Therefore, financial institutions such as securities companies are not allowed to sign entrusted financial management contracts without obtaining the qualification of entrusted financial management or their branches are not authorized.

2. Commercial banks

According to the Interim Measures for the Administration of Personal Financial Services of Commercial Banks, Chinese-funded commercial banks can launch personal financial products and engage in personal financial services. The scope of entrusted wealth management business refers to the professional services provided by commercial banks for individual customers, such as financial analysis and investment consultancy, and the business activities of commercial banks to publicize and sell investment products and wealth management plans for specific target customers or customer groups, and to conduct investment operations or asset management on behalf of customers.

3. Natural person

The entrusted financial management between natural persons has a wide range and a large number, but it will not have a negative impact on the financial market because of its small scale and too scattered. Therefore, according to the principle of party autonomy, as long as it does not violate the prohibitive provisions of national laws and regulations, it should be recognized as effective and can be used as the main body of entrusted financial management. However, it is another matter for natural persons to jointly or independently accept the entrustment of unspecified people in society to engage in entrusted wealth management business in the same period, because this behavior is obviously inconsistent with their status and qualifications. In May 2008, Wang, the "777 Big Brother" who was widely concerned by the society, was sentenced to three years' imprisonment by the People's Court of Lvyuan District, Changchun City, Jilin Province, and was fined 600,000 yuan. The illegal income of 2056 12.72 yuan was recovered and turned over to the state treasury.

In addition, in reality, many consulting companies in the securities industry and their employees, as well as brokers and investors in the securities and futures industry, have signed investment entrusted financial management contracts. In fact, according to the relevant laws and regulations of the country, they are not qualified subjects. According to Article 171 of the Securities Law, investment consulting institutions engaged in securities services and their employees shall not engage in securities investment on behalf of clients, nor shall they agree with clients to share the gains or losses of securities investment. In addition, according to the Securities Law, the Interim Provisions on the Administration of Securities Brokers and the Measures for the Administration of Futures Brokers, securities and futures brokers, as securities and futures practitioners, are not allowed to finance their clients in their own names.

Second, the form and nature of entrusted financial management

Due to the vigorous development of the securities and futures industry, entrusted financial management has entered thousands of households, especially among natural persons, and its forms of expression are more flexible and innovative, generally including discretionary power, guaranteed dividends, membership system and so on.

In order to standardize entrusted financial management, China Securities Regulatory Commission has successively issued the Notice on Regulating Entrusted Investment Management of Securities Companies and the Pilot Measures for Asset Management of Specific Clients of Fund Management Companies, and the People's Bank of China has also promulgated the Interim Measures for Fund Trust Management of Trust and Investment Companies. According to "whether the assets are transferred" and "the name of the investor used in the transaction", entrusted financial management can be divided into trust entrusted financial management and entrusted agent entrusted financial management.

Trust refers to the act that the principal entrusts his property rights to the trustee based on his trust in the trustee, and the trustee manages or disposes in his own name for the benefit of the beneficiary or for a specific purpose according to the wishes of the principal. Entrusted financial management with two conditions: "the client transfers the assets to the trustee" and "the trustee manages and disposes the assets in his own name" is based on entrusted financial management of trust, so the nature of the contract concluded is a trust contract.

In practice, some entrusted financial management contracts stipulate that the client opens a capital account and a stock futures trading account in his own name, and the trustee uses the client's account to engage in investment and business activities; Other entrusted financial management contracts stipulate that although the principal transfers funds or securities to the trustee, the trustee must conduct business management and investment transactions in the name of the principal. The essence of this entrusted financial management contract is that the trustee carries out civil legal acts according to the entrustment of the client, and the legal consequences are borne by the client. Therefore, this kind of entrusted financial management contract should be recognized as an entrusted contract, which is called entrusted financial management of principal-agent type.

According to the different legal nature of some new entrusted financial management contracts, they can be classified as famous contracts determined by existing laws, and adjusted and summarized. For example, the entrusted financial management that the principal and interest are guaranteed and the excess is returned to the trustee is adjusted to the loan contract relationship because it is similar to private lending; The entrusted financial management behavior that the trustee puts a certain amount of his own assets into the securities and futures market together with the entrusted assets, and shares the investment income and risk with the client in a certain proportion can be regarded as the adjustment of the partnership contractual relationship.

For the "guarantee clause" that frequently appears in the entrusted financing contract, it is inevitable to mention the form of entrusted financing. The "guarantee clause" mainly appears in three forms in the entrusted financial management contract, namely, the clause that guarantees the fixed return of principal and interest, the clause that guarantees the minimum return of principal and interest, and the clause that guarantees the principal from loss. The so-called terms of guaranteeing a fixed return on principal and interest are actually called entrusted financial management, which is actually the terms of private lending. The so-called minimum income clause of capital preservation and interest protection refers to the clause that the principal and the trustee agree that the trustee not only guarantees that the principal of the entrusted assets will not be lost, but also guarantees a certain proportion of the principal's fixed rate of return, and the two parties share the excess income according to the agreed proportion. The so-called clause of guaranteeing the principal from loss refers to the clause that the principal and the trustee agree that the trustee will guarantee the principal of the entrusted assets from loss regardless of profit or loss, and the two parties will share the income according to the agreed proportion. In practice, when the entrusted assets suffer losses, the trustee promises to make up for part or all of the principal losses, or promises to make up for the income losses again. This commitment to make up for the loss should be included in the clauses that guarantee the principal not to be lost and the minimum principal and interest return.

"Guarantee clause" is the embodiment of the profit-seeking nature of investment funds and belongs to the category of private law adjustment. According to the principle of party autonomy, as long as it does not violate the prohibitive provisions of national laws and regulations, it should be considered valid. However, there is no unified understanding between the theoretical circle and the judicial practice circle. Some scholars also believe that the "guarantee clause" in entrusted financial management circumvents and passes on financial risks, which violates the basic economic law of fair trade and the basic principles of equal compensation and fairness in contract law, and the rights and obligations are obviously unbalanced. Therefore, because it is considered invalid, cases supporting this view are also common in judicial practice.

It should be mentioned that the promise of "guarantee clause" is explicitly prohibited in the entrusted financial management contracts of securities companies and trust companies. For example, Article 144 of the Securities Law of People's Republic of China (PRC) stipulates that a securities company shall not make a commitment to its clients' securities trading income in any way, nor shall it compensate for the losses of securities trading. The Notice of China Banking Regulatory Commission on Prohibiting Trust and Investment Companies from Undertaking Trust Business stipulates that trust and investment companies shall not promise the trust parties that the principal of the trust property will not be lost or guarantee the minimum income by means of trust contracts, supplementary agreements or any other means. At the same time, when promoting trust products or handling trust business, trust and investment companies shall not hint or mislead the trust parties that the trust property will not be damaged or guarantee the minimum income.

Three, on the legal practice of handling entrusted financial disputes

How do legal practitioners deal with disputes arising from the performance of entrusted financial management contracts in reality?

1. If the parties agree in the contract that the principal will deliver the funds to the trustee, and the trustee will open a securities account for securities trading, and the trustee will return the principal to the principal and pay a fixed return after the expiration of the entrustment period, or if it is agreed that the excess investment income will be divided by the principal and the trustee in proportion except for the fixed return, it shall be deemed that the two parties have established a loan relationship by entrusting financial management, and the cause of action shall be subject to the loan contract dispute. The contractual validity of the loan relationship established in the form of entrusted financial management shall be determined according to the principle of consistency in the handling of loan contract disputes by the people's courts. For example, the agreed income is more than four times the interest rate of similar loans of banks and is not protected. If the entrusted financial management between enterprises is recognized as a loan, the contract shall be confirmed invalid because it violates financial regulations. In addition to returning the principal, confiscate the interest that the investor has obtained or agreed to obtain, and impose a fine equivalent to the bank interest on the fund occupier; However, in practice, the courts generally do not deal with collection and fines, and some courts also order the occupier of funds to compensate the lender for losses, which are calculated according to the interest of bank loans in the same period.

2. If the parties agree in the contract that the client will entrust the account control right to the trustee for securities trading after opening an account and investing capital or purchasing securities assets by himself, and the trustee promises to return the principal and pay a fixed return to the client after the entrustment period expires, or it is agreed that the excess investment income will be divided by the principal and the trustee in proportion except for the fixed return, it shall be deemed that there is a "guarantee clause" between the two parties, and the cause of action shall be subject to the entrustment contract dispute. The validity of an entrustment contract that is recognized as having a guarantee clause shall generally be recognized as valid, except that the trustee is a securities company and other laws and regulations explicitly prohibit the conclusion of a "guarantee clause". If the client requests the trustee to return the principal and agrees to return it, the people's court shall support it. However, if the trustee is unable to perform the contract due to market risks and requests to reduce the return other than the normal fruits, the people's court may make adjustments as appropriate.

3. The entrusted financial management contract signed in violation of the prohibitive provisions of laws and regulations shall be deemed invalid, such as the securities company's commitment to conclude a "guarantee clause". If both parties are at fault, they shall be liable for damages respectively according to the size of the fault. In general, the trustee shall be deemed to be mainly responsible for the loss. If the parties make a defense on the grounds that they have paid the other party a return or the other party has enjoyed the income, the return paid or the income enjoyed can offset the loss. If the parties do not raise the above defense, the court will not take the initiative to intervene. If the trustee argues that both parties have signed other entrusted financial management contracts in addition to the entrusted financial management contract involved in this case, and have paid the client the return as agreed, the court will not support it.

4 in the name of entrusted financial management, suspected of illegal business, illegal fund-raising and other illegal acts, depending on the seriousness of the case, shall be investigated for legal responsibility, which constitutes a crime, transferred to judicial organs for criminal responsibility.

The above is the author's understanding and summary of the effective judgment documents in this province in legal practice. However, China's judicial system does not implement the precedent system. In fact, all kinds of entrusted financial management cases occur frequently all over the country, and there are also various major differences in judicial practice. Taking Jiangsu and Shanghai as examples, the Shanghai Higher People's Court generally thinks that the guarantee clause is invalid, while the Jiangsu Higher People's Court thinks that the guarantee clause is just the opposite.

There are a large number of entrusted financial management cases in local courts, mainly because of the lack of direct and clear legal basis, but also because of too much controversy, which leads to different operations in the trial of entrusted financial management cases in local courts, and the cost of investor rights protection in disputes is unbearable. There have been at least six drafts of the judicial interpretation of the Supreme People's Court's "Several Provisions on the Trial of Disputes over Entrusted Financial Management Contracts", which has not yet been promulgated. Up to now, domestic judicial circles, academic circles and securities circles are still arguing fiercely about some clauses in the Judicial Interpretation.

So far, the "judicial interpretation" of entrusted financial management has not been issued, which is not only a theoretical difficulty, but also related to the interest game behind all aspects, that is, it is difficult to establish the balance point between the entrusted financial manager and the entrusted financial manager. As an investor, it may be the wisest choice to look after your wallet and make careful investment decisions.