The agreement of fixed return on investment, that is, the agreement of guaranteed clause, is a common agreement for investors to obtain fixed return unconditionally to avoid risks, so the obligation of fixed return is set up in capital, property management and management rights. The main forms of agreement are: guaranteed fixed repayment of principal and interest, guaranteed minimum repayment of principal and interest, and guaranteed principal from loss or damage. In fact, the field of private law belongs to the category of party autonomy.
However, China's current law 20 14 "Securities Law" stipulates in Article 144 that a securities company shall not make a commitment or compensate for the losses of its clients' securities transactions in any way. The concept, nature and effectiveness of the guarantee clause in joint venture were clearly put forward in the Supreme People's Court's Answers to Several Questions on Trial of Joint Venture Contract Disputes.
Its opinion on validity is invalid for two reasons. One is that the guarantee clause in the joint venture violates the essence of the joint venture, and the joint venture should bear risks and profits and losses. Secondly, it is considered that the existence of the guarantee clause in the joint venture is the fact of borrowing in the name of the joint venture, which violates the financial regulations that enterprises are not allowed to borrow funds.
This civil code clearly puts forward the principle of "public order and good customs", and takes non-violation of public order and good customs as the effective elements of civil legal acts, which makes up for the shortcomings of legal provisions.
Laws and administrative regulations can not cover all civil legal acts in real life, as well as those acts that do not violate the prohibitive provisions of existing laws and administrative regulations on the surface, but actually harm the common interests of all people, undermine the social and economic order and life order, and violate good customs. Controlling the effectiveness of legal acts through public order and good customs is conducive to maintaining social public order and good customs.
In commercial activities, financial institutions such as banks, trusts, securities, funds, futures and insurance asset management institutions accept the entrustment of investors and invest with the property of the entrusted investors. Financial institutions perform the obligation of honesty, credit and diligence to the interests of customers and charge corresponding management fees. Customers bear investment risks and gain income. This is a normal investment activity.
Financial institutions shall not promise to protect capital and income when conducting asset management business. When payment is difficult, financial institutions may not advance in any form. Private fund managers and private fund sales institutions shall not promise investors that the investment principal will not be lost or guarantee the minimum interest.