The Legal Nature Of Minimum Guarantee Clauses In Structured Asset Management Products

Financial risk control has always been the top priority of China’s financial supervision.Since the release of the Guiding Opinions on Regulating Asset Management Business of Financial Institutions,under the financial supervision mode of "penetrating supervision",the supervision concepts of "deleveraging" and "breaking the rigid exchange" have become more and more popular.In recent years,as a trading tool with the nature of "just confirmed" and "guaranteed return",the minimum guarantee agreement has participated in a large number of financial transactions.However,the evaluation of the minimum guarantee agreement in China’s administrative supervision and judicial practice sometimes can not reflect consistency and unity,which makes it difficult to justify it from the perspective of judicial practice alone.In view of this,this paper will start from the path of transaction law,property law and organization law,take structured trust products as the foothold,and try to find a path worthy of reference,so as to find the interpretation path of the minimum guarantee agreement and solve the above dilemma.The first chapter of this paper will focus on the concept and nature of the minimum guarantee agreement and the specific application of the minimum guarantee agreement of structured asset management products,preliminarily define the concept and nature of the minimum guarantee agreement through various normative documents,judicial practice and scholars’ theories,and briefly introduce the structured asset management products,so as to clarify the connotation of the minimum guarantee agreement,Get rid of the wrong understanding of the minimum guarantee agreement.On this basis,this paper will explain the minimum guarantee clause through the triple path of transaction law,property law and organizational law.The interpretation path of the transaction law mentioned in this paper refers to whether the minimum guarantee agreement may constitute a loan contract,which aims to compare the minimum guarantee clause with the loan relationship,explore whether they have something in common,and then explain the problems involved in the minimum guarantee clause.However,there are similarities between the minimum guarantee agreement and the loan contract.There is no lack of such views in judicial practice and academic circles.However,adopting this view will lead to the inconsistency between the trustor and the actual owner of the trust share publicity,which will lead to the contradiction between the relativity of creditor’s rights and the worldliness of ownership.Therefore,this path is not suitable for interpreting the minimum guarantee agreement.The interpretation path of property law refers to whether the minimum guarantee agreement may constitute a guarantee or a guarantee contract.Such a path seems to be able to solve the effectiveness of the minimum guarantee commitment provided by inferior investors or a third party to a certain extent,but there is a problem of violating the subordination of the guarantee and there is still a dilemma of interpretation.There are two systems that can be applied in the interpretation path of the organic law,namely,preferred shares and bet agreement.Preferred shares are similar to the minimum guarantee clause in nature,and both have the attributes of creditor’s rights and equity.However,preferred stock in China lacks sufficient institutional support,and can only explain the relationship between priority investors and trust,but can not explain the legal relationship between investors.Therefore,there are still deficiencies.As a substitute for preferred stock in China,the valuation adjustment mechanism has the advantages of the preferred stock path.At the same time,it can also learn from the above problems of no institutional support and legal relationship between investors.Although the interpretation path of the valuation adjustment mechanism can explain the effectiveness of the minimum guarantee agreement,there are still problems that can not be directly analogized and applied in terms of rigid cashing and other issues.After comparing the advantages and disadvantages of the above paths,this paper will choose the interpretation path of the valuation adjustment mechanism,and focus on how to explain the effectiveness of "rigid cashing","nominal investment and real debt" and the provision of minimum guarantee clauses by special third parties under this path,so as to clarify the misunderstandings existing in practice,The reasons why administrative supervision and judicial practice fail to reflect consistency on specific issues.