| Financial investment products is a new concept developed by South Korea's Legal System of Capital Market,which is strong in summary and penetration and well adapted to the increasing emergence of financial investment products and its derivatives under the background of financial liberalization in the new era.This paper reconstructs China's distribution system and trading system of financial investment products based on the annotated legal interpretation of the concept of it.Capital one is an introduction of the paper,which focuses on the source of the topic,summary of domestic and foreign researches,and main contents,innovative study and disadvantages of the paper.Chapter two concentrates on the concept of financial investment products,its difference from securities and studies legal issues of its constitution and categorization,etc.The paper holds that the concept of financial investment products is produced based on three aspects of background,namely,financial liberalization and globalization,mixed operation from split operation in financial industry and reform of financial supervision system promoted by mixed operation.Then the paper compares relevant concepts of financial investment products and financial goods,and it concludes that there are differences in attributes,values and risks,while financial investment products are different in attributes,contents,types,etc.from financial tools.We emphasize that financial investment products contains four aspects,that is,the purpose,investment,money transfer and contract rights,and externally,we exclude non-financial investment products by means of two core standards(investment and purpose).In this paper,we think that the financial investment product refers to that investors obtain contract rights and bear greater risks on financial assets or services at certain times in order get interests,avoid losses,carry out risk management or pay money according to contracts,etc.we here further sums up its features,and summarize them as investment quality,risk quality and future quality of money transfer;the functions of its concept,that is,timely confirming the fact that the industry of financial investment has extended,which points out the acting point of function supervision and penetrating supervision to meet the demand of diverse investment and distinguish deposit,insurance and other non-financial investment products.In addition,this paper further defines the significance of financial investment products,that is,presenting the direction of financial reform and legislation,a tie holding entities in financial market and establishing basic concepts in financial services law system.The second section of this chapter,we particularly analyze the relations between the concept of financial investment products and securities.We consider that securities are essentially a kind of investment rights.Therefore,the definition of securities in China's Revised Edition of Securities Law shall avoid static expression,while adopt a dynamic way to redefine as a investment contract,negotiable securities and other securities that are verified by administrative regulations and judicial interpretation that are characterized as profitability,risk quality,standardization,tradability or redeem ability.In this regard,this paper analyzes the differences of the two concepts on basis of theories of law,including coverage,issue subject,transaction subject,supervisors,remedy methods,etc.and at legislative level.In order to further distinguish the two concepts,we here discuss their “overlap” contents.In the third section,we dissect the internal structure of financial investment products,namely,composition and type.As for the composition,the paper analyzes the structure of financial investment products in Japan,South Korea and the US according to the order of legislation.We conclude that the boundary of the financial investment product in Japan is unclear,while South Korea has significantly made progress based on Japan.In respect of South Korea's study,it is a secondary concept belonging to financial products,specifically to say,it includes securities and derivative products,where the content of securities is expanding.Similar to Japan,the structure of the financial investment products in America is not clear either,which reflects in the double structures recognized by Securities Law,other legal text and judicial precedents.There is more fierce expansion of the content of securities in the US.Based on what we analyzed above,we uphold in the paper that the categorization of the financial investment products shall comply with three rules: type division tends to securities and derivative,the financial investment product has become a corresponding concept of non-financial investment products,and employing the concept of financial investment products and the internal logic of its categorization in the distribution and trading activities of financial investment products.Finally,the paper automatically concludes the structure picture of the financial investment product: the financial investment product is subordinate to financial products and corresponds to non-financial investment products and its segments include securities and financial derivatives.There are irrationalities in the current classification of financial products in China,which are not differentiated on different levels on one hand nor adapted to the needs of financial liberalization and financial innovation on the other hand.Thus,this paper suggests that China adopt the concept of financial investment products and categorize the financial products as three levels.Namely,the first level is financial products,the second level is financial investment products and non-financial investment products and the third level is financial investment products with fixed benefits,financial investment products with rights and financial investment products with derivatives.In chapter three,we adopt comparative method to study the distribution system and trading system of financial investment products in Britain,Japan,South Korea and the US.During our investigation,we find that Britain takes advantage of open model of “prohibition + permit” in its distribution rules,listed name list rules in securities for being listed and join multi-subject review model for listed enterprises.While then its transaction systems include financial service industry and financial investment behavior as regulatory objects after publishing Financial Service and Market Law.Specifically,its transaction systems include business transfer control system,punishment system for market abuse and activity supervision system.Japan actively learn the legislative experience of the UK and pays high attention to information disclosure system when it issues systems.For example,it has established punishment system for information disclosure,issuing systems of certificate of registration and report,disclosure system and investigation system including special securities information and comprehensively strengthened the compliance of issuing behaviors.As for trading system,Japan has established financial products trader system and investor classification and protection systems,regulated the business scope of the industry of financial investors in detail,indicated the honesty obligation of members of the industry of financial investors and introduced the cooling-off period system.The big success of Japan's distribution system and trading system for products offers model for South Korea.Based on Japan's Financial Products Transaction Law,South Korea further optimized the chapter structure system of legislation and generally raised its legislative level.It established market access rules for financial investors in the distribution system,perfected the corporate governance structure of financial investors and creatively built up the rules of common business conducts and special business conducts for financial operators.As for trading system,South Korea regulated investment inducement and the behavior of taking advantage of job facilitation as common behavior rules,especially in the rule of special business conducts,it laid down detailed behavior regulations targeting at investment traders and investment agents,collective investors,investment consultants,carte blanche investors and trustors.The distribution system of financial investment products in the US is mainly presented as securities issuance system,which is pretty detailed and rigorous.In particular,the successful establishment of its “shelf registration” system built up a strict information disclosure system,which strengthens the transparency of issuance.As for the trading system,American relevant laws strictly regulate transaction behaviors,transaction subjects and transaction tools,and manipulation,fraud,tricks,etc.Second section of this chapter introduces China's distribution system and trading system of the financial investment products.Distribution system in China is generally characterized as combination of examination and issuing system for listed securities and approval or registration system for non-listed bonds and securities.The distribution system is mainly indicated in Securities Law and the regulations formulated by “People's Bank of China,China Banking Regulatory Commission,China Securities Regulatory Commission and China Insurance Regulatory Commission”.As for trading system,China's stock exchange is typical on-floor exchange,and meticulous and rigorous regulatory systems have stipulated.However,regulations concerning banking finance products transaction,collective investment planning transaction,insurance investment products transaction,etc.are the scattered.In the third section,we discuss the comparison of the distribution system and trading system of financial investment products in China and in foreign countries.On one hand,it is because more and more similar regulations between distribution system and trading system between the two sides,especially the approaching ideas and similar market environment,market structure and types of financial investment products.On the other hand,there are still differences,which are reflected in: 1.Differences in regulatory system.In this regard,it is difficult to adapt to the financial liberalization,put the supervision in place and protect investors;2.Differences in distribution system and trading system.Regulatory organizations in the legislative system establish laws separately and there are different levels inside.As a result,it is not only difficult for enforcement agencies to apply these regulations,but also more difficult for judicial authorities.In addition,due to the adoption of issuance approval system,it is difficult for on-the-spot issuance,while encourages the off-site transactions.It is not standardized;3.Differences in trading system.The existing laws in China are mainly regulations established by former “People's Bank of China,China Banking Regulatory Commission,China Securities Regulatory Commission and China Insurance Regulatory Commission”,which leads to the scattering and incompletion of regulatory and legislative system,for example,the appropriate obligations system for investors,handling system for abnormal securities transactions and other systems are not detailed enough and comprehensive.In fourth section,the paper puts forward some common trends of distribution system and trading system of financial investment products in China and overseas,that is,a trend of types and levels of financial investment products,a trend of structure of distribution system,a trend of standardization of trading system,a trend of integration between supervision and protection,and distribution system and trading system of financial investment products.Chapter four alternatively analyzes some important systems in the distribution of financial investment products inside and outside China,that is,information disclosure and risk revealing system of public offering.Firstly,the paper introduces information disclosure system with the example of South Korea's Legal System of Capital Market and points out that most foreign countries list protection of investors as essential aim,followed by the comprehensiveness,authenticity,timeliness and sufficiency of information disclosure.As for information disclosure,the role of regulatory authorities has changed,namely,they have abandoned the previous negative attitude in respect of morality and conscience,and changed into being close to investors and serving them.More precisely,information disclosing persons are advancing themselves towards bearing the responsibility of fiduciary duty.Secondly,it also introduces risk disclosure system overseas and shows that risk disclosure originates from the requirement of public transaction.In short,information disclosure information is the theoretical cornerstone of risk disclosure.Take EU's Financial Tools Market Instructions as an example.It concludes that the core of risk disclosure system relies on protection of investors.Then we extract the expansion of responsible subjects which results from risk disclosure system.Thirdly,this paper researches and analyzes the distribution system of financial investment products in China and points out the gaps and disadvantages herein.To be more specific,as for supervision system,government excessively intervenes in market access,the function of supervision authorities cannot match their businesses,internal competition exists in the authorities and the supervision restricts financial innovation.What's more,as for information disclosure system,relevant regulations established by all supervision authorities are various,diverse in forms and lax punishment.And in the respect of risk disclosure,the legislative norms are not sufficient,and it is mixed with information disclosure and its contents avoid the important while dwell on the trivial.Chapter five analyzes some important systems in the process of transactions of financial investment products at home and abroad.First of all,we discuss the transaction forms and restrictive systems.And we consider that on-site transactions and off-site transactions concerning financial investment products are different in transaction rules.As for in-site transaction,the rule aims to bidding transaction,and transaction facilities and rules in every country are complete.However,the differences focus on off-site transactions.According to international development trend,many countries have made progress in the standardization,normalization and security of off-site transactions,while China is still on the way in the regulatory construction is this aspect.Then,the paper takes self-transaction and related transaction as example,analyzes the restrictive rules between transaction forms of financial investment products and points out that it is a global trend to loosen the two transaction forms.In the meantime,the author makes a theoretical explanation on the restrictive forms and differentiating solutions of self-transaction system and related transaction system in China.Secondly,the article analyzes anti-fraud system of financial transactions.Based on comparison method,the paper analyzes anti-fraud system of financial transaction and concludes that there are weaknesses of civil legislation of relevant systems,such as narrow legislative influence,weak operation of remedy system,the lack of important regulations of erroneous transactions,improper transactions,etc.,small coverage of protective funds for investors.In addition,there are gaps of administrative legislation,such as irrational allocation of duties of supervision authorities,weak market adaptability for regulatory policies from the top down and instability of legislative support of financial policies.As for criminal law,China prefers to take advantage of heavy penalties to punish financial fraud crimes,which is different from the strong civil compensation and administrative punishment around the world.Afterwards,the paper discuss risk management system to prevent from fraud,points out that it is necessary to strengthen review and examination of application,increase the obligation of information disclosure and establish regulations on promotion so as to make self-regulatory spillover a global trend.Finally,the paper also analyzes the legal binding force of anti-fraud system and believes that there is a market access prohibition to restrict distribution and sales behavior,regulate unfair transactions and call for illegal liabilities or liabilities for breach of contract,etc.The sixth chapter puts forward some suggestions on the legislation of China's financial investment commodity issuance and trading system.In the first section of the article,it first discussed the legislative system of China's financial investment product issuance and trading system.the article believe that China should formulate the "Financial Investment Commodity Trading Law" to unify the rules governing the issuance and trading of financial investment commodity transactions,and the "Commercial Banking Law," The Common Laws such as the Securities Law and the Insurance Law have been absorbed,while maintaining the independence of the "People's Bank of China Law." The "financial investment commodity trading law" should generally adopt a choreography structure,divided into at least eight series: General,Financial Investors,Business Rules,Trading Rules,Exchanges,Investor Protection,Financial Supervision,Penalties and Remedies.The second section of the article puts forward some suggestions on the legislation of China's financial investment product issuance system,and advocates the establishment of a multi-level issuing market.The article maintains that China's issuance system should include specific systems such as financial investment product types,issue subjects,issuance rules,and information disclosure.Furthermore,the framework of the country's specific issuance system was conceived.That is,under the goal of establishing a multi-level issuing system,the issuance examination system should be transformed into a multi-level issuance registration system and issuance registration exemption system,and an issuance and distribution system should be established.The third section of the article puts forward some suggestions on the construction of China's financial investment commodity trading law legislation,and argues that China should build a compound control model for financial investment commodity transactions.It generally involves the subject qualification of trading and market access,trading rules,and Fraud and other specific systems.The article focuses on dealing with the rules of the transaction,the anti-fraud system,the civil,administrative and criminal liability of the offending transaction.The fourth section of the article discusses the construction of China's financial investment commodity investor protection system,and advocates that a framework system should be established in the investor protection system,advocates the establishment of a differentiated protection system for financial investors,and establishes an investor protection institution and a protection fund.The construction of the system.The paper also proposes strengthening the anti-fraud system and rights relief system to protect the legitimate rights and interests of investors.The fifth section of the article puts forward some suggestions for the construction of China's financial supervision and management system,advocating that the current Financial Stability Development Committee should be transformed into an internal agency of the State Council and be responsible for coordinating the central bank under the leadership of the State Council,the Financial Services Administration,and the Securities Regulatory Commission.The latter three are jointly responsible to the State Council.The current bancassurance committee was reformed into the Financial Services Administration and it performed the functions of supervising the financial institutions,intermediaries,consultants and other financial institutions and financial derivatives markets,while the central bank was mainly responsible for the formulation of monetary policies and macro-regulations.It will still be responsible for the supervision of publicly listed companies and the supervision of the securities derivatives market.Finally,in accordance with the principle that there must be constraints on the power,design the right to relief procedures. |
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