Research On Validity Of Guarantee Clauses In Private Fund

This paper takes legislative provisions,regulatory practice and judicial practice as three important perspectives to complete a systematic study on the effectiveness of guarantee clauses contained in private fund products.The paper is composed of four chapters.The first chapter mainly defines the research object and scope,and clarifies some basic concepts.The rest of the first chapter enumerates and explains in detail the classification of guarantee clauses,including compensation clauses,guarantee clauses against loss of principal,guarantee clauses of fixed profit,guarantee clauses of minimum return,summarizes the main theories of effectiveness judgment of guarantee clauses,and makes comments on the rationality of various theories.The second chapter discusses the status quo of the effectiveness determination of guarantee clauses in the private fund industry from the perspective of legislation and regulatory practice.Among them,based on legal documents' validity level,this paper sorts out the relevant provisions on the validity determination of guarantee clauses in current legal and regulatory system of private fund.Moreover,the paper also looks for private fund products that are contrary to the paper opinions of the regulatory authorities.The private fund products that are registered successfully and permitted to be released by regulatory authorities actually have guarantee clauses in essence.Finally,it is pointed out that current operation of the supervision shows that the supervision has a flexible attitude towards the validity determination of guarantee clauses,it will consider structure of guarantee clauses to make different conclusions.The third chapter discusses validity determination from the perspective of judicial practice.Firstly,based on several classifications of guarantee clauses,the relevant litigation disputes of private fund are retrieved.After summing up the judicial determination,the paper points out that guaranteed clauses' structure does not affect judicial determination,and judges tend to admit the validity of guarantee clauses in private fund.Finally,considering the release of one domestic judicial file from the Supreme People's Court in 2019,the paper realizes that the new explanations will have an impact on related judicial trials.The fourth chapter points out that fiduciary duty should be implemented among private fund.To prevent the failure of protection of rights and interests of investors,fund managers should be prevented from the temptation to abuse power and faulty performance.Meanwhile,the paper puts forward some suggestions and countermeasures for the construction of fiduciary duty and market risk control to build up an investor-friendlier private fund market.