Study On The Guarantee Mechanism Of Civil Laws For The Fund-share Holders' Rights And Profit

Nowadays, securities investment fund develops quickly in china,meanwhile the concerned civil laws and regulations are not instituted completely. It is definitely that the legal rights of the fund-share holders are threatened from many fields. If the fund-share holders'legal rights can not be protected perfectly by civil laws, they may withdraw their investment because of their lack of confidence,and may affect the healthy development of the fund industry and the rational implement of the security market, even threaten the security of the total financial system. This article discusses the mechanism construction of civil laws for the fund-share holders'rights and profit. It is divided into five chapters, except of the introduction and the conclusion.The first and the second chapter are about the analysis on the securities investment fund in jurisprudence. The author starts at analysizing the basic legal relationships of the securities investment fund, and then discusses its conception,law character, model of its trust property , the fund-share holders'rights and the necessity of the protection of their rights.The third chapter clearly illustrates the fiduciary legal duty of the fund-managers based on the trust character of the securities investment fund,which is the logical core of the total article. The main way of the protection of the fund-holders'rights and profit in civil laws is to guarantee the factual implement of the fund-managers'fiduciary duty.The forth chapter analysises and discusses in three angles,which include,the defendence and restriction function of the each party on the implement of the fund-managers'fiduciary duty; the counteract or absence of the present fund-law regulations; the corresponding suggestions of improving the present fund-law regulations,which aims to clarify that the purpose of restricting the fund-managers is to protect the legal rights and profit of the fund-share holders.Chapter Five discusses the matters concerning civil remedy after the interests of the fund-share holders is infringed. Proceed from relative abroad laws and practice, the discussion is unfold concretely from three aspects, such as jurisprudential basics of civil action concerning the securities investment fund, choice of action model for the fund-share holders and the function of the assistance from the administrative supervision in civil action of the securities investment fund. The purpose is to put forward several settlements for perfecting legal system of civil litigation for the fund-share holders under the circumstance that the legal system of civil remedy need to be established, and to interact with each other between ex post remedy and above-mentioned ex ante precautions and simultaneous supervision,thereby to promote the formation of the complete chain of the civil laws'protection for the fund-share holders.Resource of theory used in writing this article is mainly theory of civil and commercial laws, combining with relative theory in the field of economics. Study method covers history analysis, comparative analysis, system analysis, positive analysis and so on. Synchronously, comparing with comparative delay of materials used in other studies, academic materials and market information used and referenced in this article is brand-new, corresponding with actual background that industry of the securities investment fund is rapidly growing.Though the analysis of theory and combining with his own practicing impression, in this article the author intent to studies and discusses the existing civil laws'protection system for the rights and interest of the fund-share holders, put forward corresponding reasonable legislative proposals, in order to contribute his effort for the fund-share holders'benefit from the rapid growth in the capital market and the long-term and solid development of the industry of securities investment fund in China.