Research On The Guarantee Clause Of Entrusted Financial Management Contract

As an agreement for loss and profit distribution,guarantee clauses are widely used in entrusted financial management contracts.At present,the securities law and the basic law of securities investment have a few explicit directional provisions,which cannot be universally applied.The regulation of guarantee clause is faced with the dilemma of weak legislative,judicial,and theoretical research.In 2018,the People's Band of China and others joint publications provided corresponding normative guidelines for the resolution of financial institutions' entrustment financing disputes,but they cannot be fully applicable to all entrusted entities.Whether the entrustment financing disputes of non-financial institutions and natural persons can be applied by reference is an applicable dilemma.In judicial practice,more than half of entrusted financial contracts are deemed invalid because of the guarantee clauses,which,on the one hand,increases the transaction cost of contracts and reduces the market operation efficiency.On the other hand,it should have played a guiding role to reduce the guarantee commitment,but due to the judicial application of law and different judgment results,the abuse of guarantee clause is intensified.It is undoubtedly an urgent problem to be solved how to find legal space for guarantee clauses and form laws,regulations and judgment rules to guide the entrustment of financial management behaviors under the situation that guarantee clauses lead to the expansion of systematic risks in the securities market.On this background,this paper analyzes the typification of guarantee clauses in entrusted financial contracts,which is divided into five parts:Chapter one describes the research background,significance,research status,research ideas and methods.Chapter two summarizes the definition,characteristics and types of guarantee clauses by extracting the commonness of guarantee clauses in practice,and compares the nature and legality of guarantee clauses with other similar clauses to lay a theoretical foundation for the following research.Chapter three adopts the empirical research method to make qualitative analysis of the judgment results and the gist of the judgment in the past two years.At the same time,through in-depth exploration of the views of the academic community,critical analysis is made on the violation of the principle of equity,damage to the social public interests,and the rationality of other subjects' reference to the securities law.TheChapter four is the suggestion of perfection.At the legislative level,on the basis of contract nominalization,it is clear that the principles of maintaining transaction security and promoting transaction are the guiding ideology of legislation.At the judicial level,based on the market economy and existing laws,legal and reasonable judicial paths and rules are sorted out on the basis of strictly abiding by the invalid contract system and fully respecting the mandatory provisions of commercial departments.The fifth part summarizes the viewpoints of the paper and explains the shortcomings of the research.