Legal Risks And Regulation Paths Of "Rigid Payment" Of Business Trusts In China

The “Guiding Opinions on Regulating the Asset Management Business of Financial Institutions” promulgated in November 2018 and the “Minutes of the National Court Civil and Commercial Trial Work Conference” promulgated in September 2019 clearly defined “rigid payment” from the financial regulatory level and the judicial trial level.Implement a comprehensive ban on regulatory attitudes.Although from the perspective of regulatory law,"rigid redemption" behavior can be prohibited or deemed invalid,but from the perspective of civil law,it is not deemed invalid because it violates the mandatory provisions of laws and regulations.Therefore,the behavior of "rigid redemption",as a legal form of autonomy between financial institutions and investors,is essentially in conflict with the prohibitive provisions of financial supervision.In this context,the author believes that leaving some room for "rigid payment" may be a more reasonable institutional choice in the future.This article will learn from the relevant experience of Japan’s trust system and try to explore a "moderate route" that is in line with my country’s national conditions,that is,to implement a flexible regulatory policy with prohibition as the principle and franchise as an exception for "rigid payment".While proposing the regulation policy of both leniency and strictness,this article will propose perfect suggestions for the problems existing under the existing regulatory policy of "rigid payment".The main body of the text is divided into six parts.The first part,through the introduction,explains the current regulatory background in my country,the main problems of the "rigid payment" regulatory policy and the writing ideas.The second part is an overview of "rigid redemption" in business trusts: "rigid redemption" as a product of the financial market has different forms,but regardless of the reason for its existence,the impact of "rigid redemption" on financial systemic risks,investment risks,etc.The impact is the main reason for its ban.The third part is the current situation and legal effect of the regulation of "rigid payment".As the key to the question,this part discusses from the perspective of civil law that the act of "rigid payment" should be protected by law as the autonomy of will in private law and should not be deemed invalid.It highlights the current regulatory policy that completely prohibits "rigid payment" and its existence.Contradiction.The fourth part specifically analyzes the main deficiencies in the regulatory thinking,trust and regulatory legal system,financial justice and other regulatory processes in the legal regulation of "rigid redemption".The fifth part puts forward suggestions on the improvement of the regulation method of "rigid redemption" of business trust.The author believes that under the premise of clarifying regulatory thinking and respecting market laws,the trust company’s redemption risk should be reduced by improving the trust compensation reserve system and designing “rigid redemption” product incidental risks,and implementing lenient measures within the framework of achieving financial regulatory goals.Strict regulatory policy.In addition,in terms of "rigid payment" regulatory legislation,we must speed up the pace of revising the Trust Law,formulate relevant judicial interpretations,and focus on the advancement of the legislation;at the judicial level,we must give full play to the role of judicial action and discuss the identification according to different situations.The assumption of liability for damages after the "rigid redemption" of the trust is invalid,and the unified judicial trial thinking is expected to achieve effective supervision of the "rigid redemption" behavior of business trusts.The sixth part is the conclusion.From the three aspects analyzed in the article,it makes a summary statement on the choice of the path to the "rigid payment" supervision with both leniency and strictness.