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Analysis of legal risk in the practice of "trust scheme"

Author: QuFeng From: www.yourpaper.net Posted: 2007-11-19 14:55:40 Read:
The rapid development of the trust industry, let us quite shocked."One law and two regulations" enacted, truly become a navigation system for the development of the trust.But the trust as a product of the Anglo-American law system with Chinese characteristics, to the development of the trust industry, it is quite concerned economists and legal scholars topic.In addition, this one and a half years development course, also mixed with some of the impetuous, blindness and shortage.As a lawyer, with knowledge structure on trust mechanism of legal theory, writing this article, aimed at risk analysis the trust practice.

A, trust market trends of

Since 2001, the "trust law", "Trust Investment Company management approach" and "Trust Investment Company trust funds business management Interim Measures" and "one law and two regulations" promulgated and implemented as a symbol, really fill the blank field of our financial legislation.At the same time, China's trust industry has started to enter the code running track, the relevant laws and regulations environment has become more perfect.After the industry consolidation, the trust company began to carry out business activities under the new system, provides a good development stage for the development of the trust industry.
With the development of the trust industry in this period of time, the trust industry to stand in a new starting point, with the innovation of trust products as an opportunity, the overall development of the capital market has played a good supporting role.Especially in 2003 this year, both in the trust product design, investment, project selection, silver letter linkage and so on, trust has initially formed a good market atmosphere.Starting from breaking the traditional financing channels, compete for market space.Especially from the "collective fund trust products", has become the focus of attention of the investment market, which the government infrastructure construction fund trust products especially much attention, such as the Shanghai outer ring tunnel, Pudong maglev rail transit, Beijing CBD land development, Tianjin Binhai New Area Network, ????o???? highways and the recently launched Zhengzhou municipal construction projects etc..This year should be the Trust Investment Company to develop trust industry momentum is greatest in a year.
In addition, let us see the trust industry vitality, trust products to the market investors pursued, trust product innovation means is a hundred flowers contend in beauty, trust market has experienced unprecedented prosperity.Trust in the use of management of the trust property, the means, from the traditional mode of loan "jump", the market appeared, such as equity operation, financing lease, transfer of beneficial right, securities investment, bank letter of cooperation and combination investment model.
However, the trust industry in 2003 situation a innovation, development, development, but also mixed with a little impetuous and blind, some trust company for the innovation of trust understanding too narrow or biased, and even individual has launched the product is not rigorous, risk four volts, very very individual company appeared for innovation, "Ming it is illegal" pattern and the situation, it had to alert the legal and economic scholars!

Two, how to understand the law of trust

Trust is a kind of "generation of financial management" of the nature of the civil legal act.China's "trust law" in the statement, "trust" refers to the client to the trustee of the trust based on the property rights, will be entrusted to the trustee, the trustee according to the intentions of the trustor in his own name, for the benefit of the beneficiary or specific purpose, manage or dispose of behavior.You can trust property in addition to prohibit the circulation of property, including animals and property rights, property, real right and creditor, stocks, bonds, bills and copyright, patent right, trademark right has the economic value, can be measured in terms of money.Here of course including money.
At the same time, because the characteristics of trust funds is "money and fund-raising", our country for the trust funds management, specification made mandatory, which must be approved by the people's Bank of China set up by the Trust Investment Company in the trust funds business, no unit or individual is allowed to engage in trust business.Trust funds from the number of client's definition, and is divided into a single client and multiple clients (two or more than two clients) commission.A plurality of client here is called "collective fund trust".
So, how to understand the "collective fund trust products"?"Collective fund trust products" shall be understood as Trust Investment Company, according to the needs of the market, according to the purposes of the trust, the trust property is combined with the characteristics of currency, the trust property management, use and disposal, and the establishment of a trust business varieties.The trust funds set summary, for a selected investment projects, thus the investment project for the principal (here refers to the beneficiary) gains.What say here "on the management of the trust property, use", refers to the Trust Investment Company in accordance with the provisions in the trust documents, take the rental, sale, loan, investment, interbank etc..

Three, trust funds in the practice of the legal risks of

We all know that the trust mechanism in the countries of Anglo-American law system, in the process of development of Chinese socialist market economy, originally developed in the Anglo-American legal system, can be in the China that has a tradition of continental law countries take root and grow, the author thinks, exploration and practice need.Therefore, there have been by virtue of knowledge structure on the system of trust law theory and the market in the case, according to Trust Investment Company (hereinafter referred to as the company) trust funds species, analyzing the existent trust plan implementation process risk, especially the legal risks.

L trust at the beginning of the establishment of legal risk

Based on the trust industry is facing increasingly expanding market demand, aggregate capital trust products with market practice proved attractive to investors.According to the collection of funds in the form of a trust company, in the process of design and the issuance of trust products, the premise is to consider the establishment of trust at the beginning of the problem.The author stated the following views.
First of all, pay attention to the choice of legal trust domain.Although, from the development trend of trust industry and academia voice, trust industry contains many development opportunities, and many legal scholars, also put forward the trust in a number of industry application and innovation suggestion.However, from the national financial policy, according to China's "trust law", which clearly defined the principles of the main direction of development of trust industry.The "trust law" provisions of article third, civil, business, public trust activities within the territory of the people's Republic of China, the applicability of this method.So, obviously, at present the country allowed to seek development within the three categories of civil, business, public trust.However, the corresponding civil and business trust is limited, "Trust Investment Company management approach" in ninth and "Interim Measures" Trust Investment Company trust funds management fourth rules: no Trust Investment Company may deposit business, shall not issue bonds or borrow from abroad.Shall not in any form of absorption or disguised deposits; not to issue vouchers, entrusted investment agency investment certificates, certificates, securities generation custody and other means to raise funds, for liabilities business.
Secondly, there must be a legitimate trust purpose.Because, this is the basic premise of the trust company to set up a trust, in addition to the trust law, certainly also must comply with other laws and regulations, the interests of the state, the individual and other economic organizations can not damage.For example, designed to suit or debt collection for the purpose of setting up the trust, the law is invalid.Therefore, the purposes of the trust should be within the law, and strive to achieve the value of the trust property.Of course, the trust company engaged in trust business, is a business and receive remuneration for the purpose, this point and the purposes of the trust are two legal concepts.
Furthermore, to strengthen the trust legal knowledge.At present, some domestic and foreign scholars in academic study, reference and emulate the trust mechanism to mature countries, proposed such as natural person or any other organization, can become the academic recommendations trustee and discussed; in addition, promotion and development of China's trust mechanism is still in the primary stage, investors still need the cognitive process, and the trust company shall not for marketing restrictions through the media newspapers, television; and a variety of similar "entrust financing, generation of financial management, investment advisory" existed in the market.The part of investors, or even the legal professionals may have a major misunderstanding.For example, according to our current legal provisions, professional trust institutions (i.e., trust company) is the sole legitimate trustee trust funds, no unit or individual is allowed to engage in trust business.Otherwise the trust funds are not protected by law, which is one of the primary legal risk fund trust, and trust domain.So, whether it is a trust company, economic experts and legal experts, we should pay attention to the ways of the world market, and actively promote the trust cognition degree among investors at work!
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