The Legal Path Of China Banking Industry From Institutional Regulation To Functional Regulation Under The Perspective Of Asset Management Products

Although the asset management products,including banking wealth management products,have many commonalities in legal construction and legal attributes,different regulatory rules of the financial market are applied to these similar products.The incurred disadvantages of regulatory competition,regulatory arbitrage and weak investor protection indicate that the institutional regulation based on institutional types cannot adapt to the reality of mixed operation,and it is necessary to introduce functional regulation to reconstruct the banking financial regulation system.In other words,the determination of regulatory authorities is based on the function of the business engaged by the financial institutions,and the same regulatory rule is applied to the same business.Getting rid of the path-dependence of regulatory authorities,financial institutions and investors on institutional regulation,reducing the interest conflicts of regulatory authorities,and avoiding the intertwining of institutional and functional regulation are preconditions for the transition of regulatory models.The transition from institutional regulation to functional regulation is a systematic legal reconstruction project under the background that the concept of the institutional regulation cannot fully protect the interests of investors,and its key significance is returning to the concept of investor protection as the basic value of financial regulation,improving the diversified investor protection methods and developing the financial innovation.In order to realize the transition from institutional regulation to functional regulation,it is necessary to functionally reinterpret the existing legal systems of banks,securities,trusts,including expanding the application scope of the Commercial Bank Law to make commercial banking institutions and quasi-commercial banking institutions be subject to the unified regulation so as to prevent regulatory arbitrage of similar businesses,improving the criteria under the Securities Law of distinguishing public offering and private placement with reference to US judicial practice so as to make banking wealth management products be subject to adequate regulation and protect the investors,abandoning the idea of regarding the trust industry as a concessionary financial industry and determining the fundamental legal relationship of asset management products as the trust on basis of the legal attributes.