Research On The Nature Of Legal Relationship Of Financial Asset Management

Financial Asset Management is a direct financing business,so for financial asset management institutions,its economic nature does not need to bear the relevant risks in the management of financial assets.Almost all the financial sub-industries in China provide asset management business.After 2008,asset management business has developed rapidly,the asset management business innovates many business models to circumvent the country’s macro-policy controls--curbing the property market,regulating local government debt--and regulatory requirements;after 2013,as the threshold of financial management industry is further lowered,the channelization of financial assets management and the attributes of shadow banks become more and more obvious,which leads to the serious circumvention of financial regulation and National Macroeconomic Regulation and Control Policy.Financial asset management in the horizontal civil and commercial law mainly relies on the contracts of its individual financial products,which reflects the individual will of both parties to the transaction and market autonomy,at the same time,the financial field is highly regulated,so we should pay attention to the stability of the financial order and the protection of investors.Therefore,financial asset management is essentially a civil and commercial law issue in operation,but at the same time it is subject to financial supervision.Financial management products are not regulated by a single “Superior Law”,but should be regulated by two kinds of superior law,namely,horizontal by civil and commercial law,vertical by economic law.The legal relationship of financial assets in the financial assets management business is not regulated by the relevant laws or regulations under the existing system,and the unclear nature of the legal relationship in the management of financial assets will also bring about some problems such as the unclear rights and obligations of the subjects in the management of financial assets,the unclear foundation of the right of claim,the different objects of execution,etc.,therefore,it is of great significance to study the nature of legal relationship in financial asset management.The framework of financial asset management is set up by civil and commercial law,and the legal problems in financial asset management practice can be solved by clarifying the basic legal relations.In order to solve the problems existing in the current financial asset management practice,it is necessary to clarify the nature of the legal relationship of financial asset management.According to the principal-agent theory,it is a kind of principal-agent legal relationship,while the trust theory is a kind of trust legal relationship.The theory of trust believes that there is no effective transfer of property ownership in asset management,and there is a regulatory system to regulate it.Therefore,some scholars believe that it is too arbitrary to define all financial assets management as trust based on the diversity of asset management business,it is not necessary for financial assets management to make clear whether the nature of legal relationship is trust legal relationship or trust legal relationship,and regulate financial management by promoting fiduciary duty and perfecting the supervision of financial law.Although the guidance on regulating the asset management business of Financial Institutions(hereinafter referred to as the new regulation)issued on April 27,2018 does not specify the legal nature of financial regulation,however,it can be seen from the full text that the financial assets management has some characteristics of trust,so the view that the legal relationship of financial assets management is essentially a trust legal relationship is more mainstream after the release of the new regulation of financial assets management.In the management of financial assets,from the analysis of the legal structure of financial assets management products,the investors’ trust in the trustee,the investors entrusting the assets to the trustee for Investment and management,and the independence of the entrusted assets,the management of the entrusted assets by the trustee for the beneficiary’s best interests can be seen from four aspects that the financial assets management business meets the constitutive requirements of the trust.It is suggested that the concept of trust should be defined in the trust law,and the trust law should be the basic law for the management of financial assets.