The Identification Of The Structural Financing Through Trust

As the external business environment,the changing regulation and the continuous expansion of banks in the emerging business,credit business innovation is becoming more and more frequent,the most typical of which is the bank and trust company cooperation business of the financing type.In the specific transaction design,this kind of business usually uses the multi-layer legal structure as well as the multi-channel subject,by the channel subject provides the fund to the foundation asset financier,causes the business transaction chain to lengthen unceasingly,business transaction structure and legal relationship are more complex.Due to the continuous innovation of financial business and financing mode,a series of new types of contracts will often break through the general legal structure,which leads the court to face the dilemma of applying the law in determining the nature and validity of the contracts.Starting from a typical case,this paper expounds the transaction structure,the nature of the contract,the validity of the contracts in structure financing.The structured financing consists of three or more parties,including investors,intermediaries,financiers and guarantors.The structure of the transaction can be divided into fund-raising and investment.As far as the legal relationship between the parties is concerned,it usually involves trust legal relationship,investment legal relationship and guarantee legal relationship.Under the background of the special national conditions of China,the channel type business carried out with bank was once the main business of trust company,and the bank and trust company cooperation business of the financing type has achieved the high speed development of the trust industry.Regulators are also gradually deepening their understanding of such cooperative business.The channel trust accords with the essential characteristic of trust,it is not to avoidance of law or negative trust.The court should be careful when invoking relevant supervision documents to judge the validity of trust contract.In the specific use of funds,in order to meet the actual needs of both parties and to break through the current system,there have been many innovative ways of repurchase transactions in practice.According to the object and content of the transaction,it can be divided into three types: equity earning right forward repurchase,equity forwardrepurchase,equity capital increase and forward repurchase.The nature of equity forward repurchase is transferring guarantee,but for equity earning right forward repurchase and equity capital increase and forward repurchase,we should still find out the real intention of the parties,and determine their nature through the discovery of concealment act.By sorting out and analyzing the judicial precedents related to forward repurchase transactions,this paper sums up the mainstream view that the court hears such cases--"substance is more important than form".On June 3,2014,the Supreme people's Court issued the "guidance opinion on the people's Court providing Judicial guarantee for the merger and reorganization of Enterprises",which also stressed that the court should adhere to the commercial trial concept of promoting the conduct of transactions and safeguarding the security of transactions,be careful to determine the validity of the new type of contract.Finally,on the basis of explaining and demonstrating the legal issues related to structural financing,this paper puts forward some suggestions on the application of the law to the typical cases mentioned above.