| The basic pension insurance system is designed to ensure that members of society receive the appropriate material guarantees when they are old and provide the necessary financial support for their life.Changes in the structure of social reproduction and rearing,the aging of the population increase,and the emergence of inflation,profound influence on our social pattern of the allocation of public resources,also make the operation of the basic endowment insurance system in China facing unprecedented pressure.As the material foundation and carrier of the basic pension insurance system,how to realize the security,liquidity and profitability of the basic pension insurance fund has become a social,economic and legal issue to be solved urgently.In recent years,as an important pillar of China’s social security system,social insurance has always been at the forefront of institutional improvement and reform.Under the background that the Third Plenary Session of the 18th CPC Central Committee explicitly proposed "to strengthen the investment management and supervision of social insurance funds,promote the marketlization of funds and diversify investment and operations",the State Council finally released the "Basic Pension Insurance Fund Investment Measures for the Administration of Investment "(hereinafter referred to as the"Measures for the Administration of Investment ")to standardize the market-oriented investment operation of pension funds,to a certain extent,also provides a system basis to achieve the Fifth Plenary Session of the 18th proposed" to establish a more sustainable social security System,to implement a universal coverage plan." Just as the basic pension investment practice in most foreign countries,the market-oriented investment in China’s basic pension has also been chosen based on the trust system.The combination of market-oriented investment of basic pension insurance funds and trusts has both its necessity and its unique advantages.In the context of trust investment,how to effective regulate and decentralize the investment and operational risk in the market-based operation of basic pensions is an urgent need to be resolved after China’s basic pension is allowed to enter the market,the sound investment laws and regulations are the key to regulate Pension market-oriented operational risk and achieve the pension bonus.To establish and improve the legal system of the basic pension trust investment,we must first deconstruct the legal relationship of China’s basic pension trust investment,only by clarifying the legal structure of the basic pension trust investment,can we build and perfect our basic pension Trust investment laws and regulations.Taking the "Investment Management Measures" as the text,we can find out that the main body of the basic pension trust can be divided into two categories,one is defined by the "Investment Management Measures",such as the settler,the trustee,the investment management agency and the custodian,these all are the dominant subjects under the legal norms;in addition,there are two hidden subjects:the basic pension owner and the beneficiary of the trust.Fund owners and beneficiaries as hidden subjects,relative to the dominant subject structure under "Investment Management Measures",the fund owners and beneficiaries are important and indispensable subject in the trust and investment legal relationship,however,it has not been mentioned and regulated in "Investment Management Measures",therefore,in this sense,they are hidden law subject.These two types of subjects constitute the two levels of legal relationship of the basic pension trust investment,the first level of the legal relationship is the legal relationship of social insurance formed by the owner of the basic pension,the insured,and the principal of the basic pension trust,the government.The second level of the legal relations is the trust legal relationship formed by the basic pension trust settler,trustee,investment management agencies and the custodian.From a qualitative analysis,China’s basic pension trust has both public and private properties;and from the establishment point of view,China’s basic pension trust is a statutory trust established according to law.Since then,the legal relationship of the basic pension trust investment shows a complex character,and its root lies in the multi-dimensional social relations adjusted by the legal relationship of the basic pension trust investment.Under the complex legal relationship of the basic pension trust investment,the structure of the right and obligation of the basic pension trust also shows the peculiarities of four aspects:the non-specific nature of the beneficiaries and the non-transferability of rights and interests,the expansibility of settler’s rights and its exercise,the intervention and harshness of the trustee’s rights and obligations,the decentralization of the supervisory authority and its balance.The particularity shown by the settler,trustee,beneficiary and supervisor in the context of the basic pension trust further increases the subjective risk of the investment in the basic pension trust,at the same time,in the current main structure,there is an obvious imbalance between the allocation of the principal risk and the principal responsibility,which reflects the imbalance of the rights and obligations of each subject under the basic pension trust.There are two approaches in the international practice for regulating the market-oriented investment and operational risk of the basic pension,one is the flexible autonomous path of the market represented by Australia,Denmark,Netherlands and other countries;the other is the rigid regulatory path represented by Germany,Brazil,Mexico and other countries.At present,subject to the slow development of China’s financial industry and the unilateral abuse of administrative power,the rigid regulatory path of regulation is more suitable for our country to perfect the existing problems of rights and obligations under the existing investment structure,so as to establish a statutory investment operation standard that meets the investment characteristics and risk regulation requirements of the basic pension trust.To impose a rigid legal regulation on the internal risk of the basic pension fund trusts,we need to integrate the specific rules under the current "Trust Law","Social Insurance Law" and "Investment Management Measures" in our country.At present,there are mainly four drawbacks to deal with the legal norms of the operation risk of the basic pension trust:there are still some gaps in the regulation of the investment preference of the beneficiary and the loss of interest,lack of prior control and guarantee mechanism for trustee’s breach of trust obligations and lack of external supervision due to the overemphasis placed on internal supervision in the supervision system.In order to effectively deal with and balance the trust investment risk of the basic pension,we should solve the two types of system problems arising from the overlapping two levels of legal relationship in the construction of the legal rules of the pension investment,the first is the deviation of investment preferences,improper intervention and the weakening of ownership principal under the trust investment of the basic pension insurance fund,and second,the agent problem of settler,trustee and beneficiary.Therefore,it is necessary to clarify the objective of protecting the interests of the beneficiaries and the insured persons under the investment of the basic pension trust in our country.Based on this,the legal system of the settler,trustee and the supervision should be improved.Under the aggregate basic pension trust investment structure,the principal risk mainly comes from the different goal settings of the basic pension trust under the identity duality of the government.As a settler,the government bears the responsibility of maintaining the interests of the beneficiaries,and the trustee only invests in the basic pension with the aim of maximizing the beneficiaries’ interests.However,as the public administrator of the basic pension insurance,the government also bears the responsibility of promoting the public interest,and under this goal,the choice of the investment strategy of the basic pension need to consider more social promotion factors.Under the existing legal system,the social investment approach can effectively fulfill the dual responsibilities of the settler,but at the same time it provides space for the government to pursue local interests or rent-seeking based on its own investment preferences.At present,the academic study is still lacking in an in-depth study of the rationality and necessity of social investment under the field of basic pensions.The legal regulation on social investment in the institutional norms is still lagging behind,making the investment of basic pension trust in our country faces large settler intervention risk.Therefore,in our current legal norms of basic pension trust,the connotation,scope and limits of social investment should be clarified firstly,at the same time,the main body of beneficiary of the insured should be clarified and the rights of beneficiaries should be improved,besides,introduce more social participation in the management of pension trust investment and improve the accountability commitment mechanism of the settlers so that to realize the legal regulation of improper intervention of the settler on the investment risk of the basic pension trust.As the trustee of the basic pension trust,the trustee enjoys the same discretion as the general trustee.Both the investment management institution and the custodian institution in the existing basic pension trust structure enjoy the fiduciary status,the fiduciary rights and the fiduciary duties of the basic pension trust,based on the entrusted authority under the trusteeship discretion.Although there’s an agent legal relationship between the trustee agency and the investment management agency and the custodian agency,the trustee agency only takes the corresponding responsibility for the election of the investment management agency and the custodian institution.At present,the trustee risk of the basic pension trust investment mainly focuses on the fulfillment of the trustee’s duty of care and faithful obligation,as well as the construction of the mechanism of the sharing of the external risk loss.In order to realize the effective legal regulation on the trustee’s risk,it is necessary to refine the standards for the responsibility of the trustee and its agents,determine the range of attention duty of the fiduciary by the standards of good managers and experts,and increase the self-investment proportion of the fiduciary limit and refine the content of information disclosure.At the same time,we should also improve the credit guarantee mechanism,the risk reserve mechanism and the loss compensation insurance mechanism to ensure the realization of the basic pension security.The basic pension trust investment supervision involves the coordination of the rights and obligations among multiple parties both in terms of supervision authorities and supervision parties.Based on the capital attributes of the pension and the economic efficiency of the trust system,the basic pension trust supervision in our country combines both marketability and professional characteristics.In order to realize the commonweal attribute and private benefit attribute contained in the basic pension trust,the choice of the basic pension trust supervision mode should combine the characteristics of the two regulatory modes of interventional supervision and guidance supervision,and adopt a compromise mode of supervision,meanwhile focus on the combination of centralized supervision and decentralized supervision,as well as the combination of administrative supervision and market supervision.Currently there are limitations on the supervisory powers exercised by all the supervisors in the basic supervision system of the basic pension trust and the financial supervisory mechanism,both the social supervision mechanism and supervisor mechanism lacks the corresponding provisions to ensure that the two supervisory mechanisms play their due roles Supervisory role.Based on this,in order to give full play to the role of China’s basic pension trust supervision mechanism,we can introduce the corresponding external auditing system into the administrative supervision mechanism and give the department of human rights and social rights the right to supervise the settler,we should further let the market self-restraint mechanism play its self-regulatory role,in addition,we can integrate the social supervision mechanism and the supervisor mechanism to clarify the status of the supervisor of the Social Insurance Commission,provide procedural protection for the members of the community to exercise the supervision right. |
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