The Empirical Study On The Entrusted Financial Management Contracts

With the gradual establishment of the era of marketing economy with economic globalization,trading liberalization and internet information,as well as the accumulation of private wealth,people start to dissatisfy the simple,individual and low efficient material merchants’ investment,whereas more and more people choose financial investments with high returns to seek capital growth.Some investors fear the high risk of financial banking activities of,and choose to entrust investment organizations which is centered in commercial banks to manage investments.Since then,entrust financing activities began.However,problems such as,minimum profit guarantee articles agreed by parties,the trustees’ malicious losses,become more and more frequent,which makes it impossible for trust management contracts to play positive market effects.The resulting increasing number of cases of entrusting contract disputes become one of the difficult complex cases in trial.Around the court in the trial practice of referee for entrusting contract dispute case has provided some experience to resolve the problem,but the vacancy of legislation leads to the disorder of judgments,which calls for scholars and judicial workers to fill in the gap.Based on the present situation,this paper adopts the method of empirical research on the referee of the entrusted financial contract disputes,to unify,classify and analyze induction,focusing on the crucial problem of entrusted financial management.This paper is mainly divided into four parts,including:The first part: the summary of the current situation of entrusted financial management disputes in our country.Starting from the accumulated data of entrusted financial management contract disputes,this author summarizes the characteristics of the entrusting contract disputes in judicial practice,and explains the problems related to the fairly controversial focus,mainly including: 1.the qualitative problem of the trust financing contracts;2.whether the obligation of information and the obligation of disclosure should be clear obligations in civil laws;3.how to understand the effectiveness of the guaranteed clauses which often appear in the entrusted financialmanagement contracts.The second part: the dispute of the attributes of the entrusted financial management contracts.The entrusted financial management contracts is often confused with the loan contracts.This section,through the examples of relevant cases,not only shows the kinds of confusions,but also carefully analyzes the reasons that cause those confusions,and puts forward the key problem,namely the attributes of the entrusted financial management contracts.It is important to note that this paper dose not absorb the pertinent ideas of trust but to directly treat the entrusted financial management contracts as a special kind of commission contracts.The third part: the boundaries of the obligation to inform risks and the disclosure obligations of the trustees.Because of the legislative vacancy,financial consumers’ rights are not protected in time nor effectively.This section discusses the two important obligations of a trustee,in order to clarify the relevant obligations of a trustee,to protect the property rights and interests of financial consumers.This part,applying empirical research method,start from the current situation that is caused by the malicious performance of the two important obligations,to articulate the suggestion to add the obligation of informing and the obligation of disclosure to the legislation.The fourth part: the effectiveness of the guaranteed clauses in a contract.In the disputes of entrusted financial management contracts,the confirmation of the effectiveness of the guaranteed clauses has always been the most disputed problem in judicial practice.Therefore,this paper finally focuses on this problem.The characteristics of this part is the hierarchical discussion of the problem,as well as adopting the empirical research method.And then,this author discusses several different opinions towards the confirmation of the effectiveness of the guaranteed clause as well as their reasons.First of all,through the case accumulated,this author discuss the definition of the guaranteed clauses and the problem of incidence.Then,this author brings up the opinion that the invalidity of the guaranteed clauses will not affect other clauses and explains why.Finally,this author fully discusses the responsibilities rising form the invalidity of the guaranteed clauses.