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The Legality Exploration Of The Rigid Payment Of Asset Management Products

Posted on:2021-02-22Degree:MasterType:Thesis
Country:ChinaCandidate:H Y BaoFull Text:PDF
GTID:2416330647953861Subject:Law
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The issue of rigid payment has a long history,along with the brutal growth of China's asset management industry,which makes financial institutions,investors,and governments love and hate.Under the pattern of separate supervision of China's financial market,different regulatory agencies have different measures for rigid payment at different stages.In recent years,with the rapid expansion and development of China's asset management industry,this industry is showing a trend of mixed operation and coordinated development.While the industry insiders are generally calling for the era of the great asset management,the standardization of this industry has drawn more attention.The introduction of the new asset management policy requires strict supervision of asset management products and completely denies rigid payment in the form of departmental regulations.The academic and practical circles have not yet reached agreement on the issue of rigid payments,and the regulatory priority thinking has hindered in-depth typed research and legal analysis of this behavior.This article believes that the priority of supervision and conceptual thinking should be broken,and the legality analysis of the rigid payment of asset management industry should be conducted from the perspectives of both private law and public law.At the same time,we should use typed thinking to classify rigid payment to explore its legitimacy.The rigid payment is part of the overall operation of the asset management industry,not an isolated illegal act.Therefore,this article further believes that effective governance of rigid payment must depend on the construction of the overall legal framework of the asset management industry,and we must adopt acombination of law and market to govern rigid payment.This article is divided into four chapters,and the brief content of each chapter is summarized as follows:The first chapter mainly clarifies the two concepts of asset management products and rigid payment to be discussed in this article,while briefly describing the origin and the background of the issue,and the current status in financial practice.In the first section,this article defines asset management products as standardized financial products issued by asset management institutions that perform asset management activities for the benefit of investors in order to maintain and increase the value of their entrusted assets,and limit the scope of asset management products discussed in this article to "capital,active management".At the same time,in this section the article points out that the basic legal relationship of the asset management product discussed in this article is “trust”.In the second section,this paper defines rigid payment from a broad perspective and classifies it,so as to facilitate the legality analysis of rigid payment based on classification.This section points out that the formation of rigid payment is the result of a long-term game of multiple forces in the asset management market;the rationality and harmfulness of rigid payment coexist;and it is pointed out that rigid payment is often not supported in judicial practice.In the second chapter,this article analyzes the legality of rigid payment behavior from the perspective of private law.Firstly,this article points out that rigid payment should be protected by autonomy in private law and that it does not violate other basic principles of civil law.Secondly,from the perspective of trust law,asset management products are an important application of the trust system in the financial field.The behavior of the asset management institution to use its own funds as the guarantee of the principal and income of the asset management product does not violate the purpose of the trust and does not deny the principle of independence of the trust property,so that it should be allowed by the trust law.However,if the asset management institution misappropriates the assets of other asset management products,it is not allowed by the trust law.Finally,from the perspective of creditor protection,this paper believes that rigid payment does not necessarily constitute an illegal violation of the interests of creditors of asset management institutions,so it is not illegal in this regard.However,the rigid payment behavior that satisfies the conditions of the creditor's revocation right in the Contract Law and the exercise of the bankruptcy revocation right in the Enterprise Bankruptcy Law can be revoked.In the third chapter,this article analyzes the legality of rigid payment from theperspective of economic law with public law attributes.In the first section,combined with the analysis of law and economics,the author believes that the rigid payment behavior is reasonable under the background of market-based competition and does not constitute unfair competition.According to the legislative principles of China's competition law,it should not be included in violation of the "Anti-unfair Competition law".In the second section,the author concludes that the prohibition of rigid redemption in the current financial supervision law mainly exists in departmental regulations and regulatory documents.As a basis for financial administrative supervision,it lacks the support of higher law.Therefore,through the analysis of law and economics,sociology of law,and politics of law,the article concludes that supervision law should not break rigid payment across the board at the proper level.In the last chapter,the article first summarizes the legitimacy of rigid payment under typed thinking.The article proposes that under the condition that the asset management institution completely mixes the funds of different asset management products,rigid payment is its legal obligation as repay the loan.In such cases,the entire asset management operation is illegal.There is a need for advance commitment type to be restricted by regulatory law,but the existence of some capital-protected asset management products should be retained.At the same time,the use of market-oriented transaction structures to achieve the guarantee or preferential payment of some investors' investment principal should be legal.In the post-performance rigid payment,the main boundaries to distinguish whether it is illegal or not are whether to use funds from other asset management products for payment,and whether there are flaws in information disclosure,and fraudulent issuance.In the second section,the article analyzes the governance of the rigid management on the macro level of the new policy of asset management and its higher law system.In the third section,the author puts forward reasonable suggestions on managing rigid payment through market-oriented diversified means.
Keywords/Search Tags:Rigid payment, Trust, Legality, Financial Supervision, Governance
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