Research On The Difficulties And Legal Countermeasures Of Penetrating Supervision Of Asset Management Business

At present,asset management business is full of chaotic phenomena,and various channels and multi-level nesting businesses are prevalent,leading to a dramatic increase in the risk of the financial industry,which not only damages the rights and interests of investors,but also destabilizes the order of the financial market.Implementing penetrating supervision to the asset management business is necessary to improve the effectiveness of financial supervision and prevent systematic risks.However,it should be recognized that there are still many obstacles to implement effectively penetrating supervision to the asset management business under the existing legal theory system,financial supervision system and financial infrastructure.This paper focuses on clarifying the problems existing in the legal theory and objective conditions of penetrating supervision,and then explores the corresponding legal countermeasures,in order to benefit the practice of penetrating supervision in the future.In addition to the introduction and conclusion,this article contains the following four parts:The first part introduces the connotation and logical system of the penetrating supervision of the asset management business.This part first analyzes some specific rules and practices similar to “penetrating supervision” in the Basel Committee and the United States.Then this part introduces the concept and related concepts of the penetrating supervision of asset management business in China,confirm the penetrating supervision of asset management business belongs to the innovation of China's regulatory system,and also identify the specific connotation and category of the research object of this paper.Finally,the logic system of the penetrating supervision of the asset management business is introduced from its source,core concept and implementation means.The second part is the realistic background and significance of China's implementation of the penetrating supervision to asset management business.In the tide of financial deregulation and innovation,the business of asset management corporations have gradually had the characteristics of cross-industry and cross-market,and a large number of channels and multi-layer nested products have appeared,which is beyond the regulatory capacities of traditional supervision mode,as a result,the theory of penetrating supervision was proposed Then,this part analyzes the important role of implementing penetration supervision to improve the effectiveness of supervision,avert regulatory arbitrage of financial institutions,protect the right and interest of investors and prevent systematic financial risks.The third part analyzes the difficulties faced by the application of the penetrating supervision of the asset management business from four perspectives.Firstly,from the theoretical perspective,penetrating supervision emphasizes the full penetration of asset management transactions,which will inevitably lead to an increase in the initiative of supervision,which contradicts the concept of modest intervention advocated by many economic law scholars.At the same time,there is a certain conflict in the legal concept between penetrating supervision and the “rights appearance principle” of commercial law.Secondly,from the normative perspective,there is no clear definition of the boundaries and specific implementation rules for the implementation of the penetrating supervision of the asset management business at present,which may lead to the abuse of regulatory power by the regulatory authorities to infringe on the private interests of market participants and increase the legal compliance burden of financial institutions.Third,from the perspective of the regulatory system,we still adopts a separate supervision model based on the nature of the organization.The lack of a clear division of regulatory responsibility and coordination mechanism between the various regulatory agencies,may easily lead to a chaotic situation in which the penetrating regulatory implementation process is independent.The fourth is from the specific implementation perspective,as the information management disclosure rules and information monitoring statistics of the asset management products have not yet been established,regulators and asset management agencies may also violate the “rational person” assumptions because of self-interested motivation and self-service awareness,resulting in multiple barriers to penetration of information disclosure in practice.The fourth part discusses the legal system arrangement for cracking the penetrating supervision dilemma of the asset management business.First,the boundaries and content of penetrating regulatory implementation should be standardized.We can investigate the implementation of penetrating supervision by introducing the principle of proportionality,and establish the principles of prudence,necessity and appropriateness which should be followed by the penetrating supervision of the asset management business,we can identify the specific content and related standards of the supervision and define the scope of the implementation of penetrating supervision.The second is to establish the accountability mechanism of“role responsibility-explain and response-liability of violate law”and urge the various supervisory agencies to properly perform their duties.At the same time,we should establish a top-level coordination mechanism of penetrating supervision to achieve the coordination and uniformity of supervision.The third is to set the obligations of asset management corporation to disclose information,strengthen the liability of the obligor for violate the information disclosure rules,and urge the obligor to actively fulfill the information disclosure obligations.Fourth,we should establish a comprehensive information monitoring statistical framework for the asset management products,and explore the application of “RegTech” to the penetrating supervision,so that we can enhance the effectiveness of penetrating supervision.