On Legislative Perfection Of Entrusting Financial Transaction In China

With the more than ten years development of the security market of our country, the variety and scale of investment and investors' quantity all get very great growth., Entrusting Financial Transaction is a quite representative model which shown the innovates of the variety of security market investment, investors'participate in extensively and the big scale of investment. Entrusting Financial Transaction bring up dementia of capital market, but a too merciless one is it make a lot of participants with high interest to ruin. Entrusting Financial Transaction is a big thing which have extensive and far-reaching influence. As far as the laws for Entrusting Financial Transaction in china are concerned, It is still a blank. As the business of Entrusting Financial Transaction increases day by day, The legal dispute about it appears constantly. All cirlcles, especially the supervision department begin to notice that The construction of the legal system has already lagged behind greatly to the practice of Entrusting Financial Transaction. Both educational circles and practice circle all have great disputes to a lot of legal questions about Entrusting Financial Transaction such as the question of qualification of the subject; Legal nature of Entrusting Financial Transaction; The prevention of the dispute and settlement mechanism; the question of legal application etc at present. There is no conclusions of an authority and unity, and some existing articles of analysis about this question are all scattered and one-sided so far, lack of the system and deep argumentation. In view of this, the thesis choose the title as On Legislative Perfection of Entrusting Financial Transaction In China. The thesis was made by using comparative analysis, real example analysis and history analysis and it stands on the basis of forefathers' research results expecting to be able to make a little contribution of Perfection of Entrusting Financial Transaction for our country. The structure of the thesis includes two parts of introduction and text and the text is divided into six chapters again. In chapter one, the writer debated the cause of the development of the entrusting financial transaction, which was developed on the basis of the economic and financial environment, the character of entrusting financial transaction itself, the difficulty of industrial investment and the effect ofMinimum-Proceeds Guarantee Clause. After all, the entrusting financial transaction in China has such characters: Most of the client are listed companies. There are many kinds of trustees which capability were not unique. The capital, which was entrusted, was suspected originally. There was no common entrusting clause at all and the Minimum-Proceeds Guarantee Clause was also prevailing. And there are many problems in the field of the information disclosure and such legislature-eluding actions. In chapter two, the writer debated some theories about the nature of entrusting financial transaction, which were summed up as "Credit", "Agency By Agreement"and "Trust". Then, the writer referred the foundation to summarize the nature of entrusting financial transaction. The writer also suggested that, according to the nature of entrusting financial transaction and for the sake of practical purpose, we should include the subject of "entrusting financial transaction"into trust legislature. In article three, the writer made a thorough summarize and analyze to the subject that the entrusting financial transaction contract concerns, which include the classification to the contract, the qualification to be entrusted and the influence generated by the qualification, the effect of the Minimum-Proceeds Guarantee Clause, how to classify the subject of the trustee and its obligation, the standard and way to specify the liability andloss.　In article four, the writer, holding the side of legislator and supervisor, referred the possibility of incoming risk. The writer emphasized that the main reason might be such: the severe problem of information disclosure; the absence of supervision to the action of entrusting financial transaction, the decision-making procedure was far from perfect, the lag of relative legislature, too many department established too much regulations, the lack of the system of credit. In article five, the writer referred that it is urgent to established low-cost and high-effect conflict-settlement systems beside the judicial systems. The arbitration to entrusting financial transaction was a part of security arbitration. But there are still some obstacles to enforce such arbitration. It is mainly because of such element below: the lack of consciousness and knowledge of the arbitration, the agreement was ignored during the course of fulfilling of the contract, the lag of the arbitrator training and the construction of arbitrator institution. In chapter six, on the foundation of the debate above, the writer made some suggestions to the legislature and polices from the these sides, which are to strengthen the government of listed-company, to regulate and specify the business of capital management, to strengthen the supervision of entrusting financial transaction, to confirm theinteger-right of appeal of shareholders and the representative-right of appeal, to intensify the security arbitration constitutions.