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Fiduciary relationship or the agency relationship - the legal nature of the Personal Financial Services of Commercial Banks

Author: LiRun From: www.yourpaper.net Posted: 2010-07-04 23:20:46 Read:
Abstract:
The British medieval usufructuary Trust marked the beginning of the system, after a century was finally mature molding in common law countries, and is widely used in the commercial sphere and civil fields. The rapid development of commercial banking personal finance business while introducing trust the system to its architecture. This paper begins with trust system and agent system is similar and the difference between the beginning of the exposition of the law of personal finance business of commercial banks to expand the analysis and discussion of the different laws and regulations in the formulation of the legal nature of the business conflict, this explore concluded.

Keywords: the Trust commissioned agent personal finance legal nature

Trust system based on the UK medieval usufructuary after centuries in common law countries mature molding, the Trust is the principal based on the trustee of the trust, the transfer of property to the trustee, the trustee in accordance with the principal the wishes of the interests of the beneficiaries in their own name or a specific purpose, the management or disposition of property relations. [1] This involves three parties - the principal, the trustee, the beneficiary. Broadly speaking, the entire trust law is in the balance of rights and obligations of the tripartite distribution and economic interests.
Trust the system and the principal-agent system has similarities, the First both commissioned behavior, followed trust is established. Once again, both promise into a contract, bilateral contract. The principal and the agent has the right of rights under the law, and undertake corresponding obligations. However, there is a clear distinction between them. First Trust can be established for contracts, wills and other forms of authorization, and the agent can only be set up through the commission contract. Followed by the trustee of a trust, enjoy full authority to handle the trust affairs from the trustor or beneficiary wanton interference, and the agent can only be under the authority of the principal activities, rights restricted. Again, after the establishment of the fiduciary relationship the parties can arbitrarily terminate that trustor or the trustee may at any time terminate the agency appointment contract. However, after the establishment of the trust relationship trustee not free resigned, the resignation of the Trustee shall be subject to the principal and the beneficiary consents. The trust shall continue to have stability and continuity, not because of the death of the principal or the agent, the loss of civil capacity due to the termination of this case, the commission contract shall be terminated. [2] Fourth, the trust, the trustee based on his name to the disposition of the trust property and direct legal consequences, while the agents engaged in related activities except in special circumstances are generally required to be the nominee, the legal consequences of the agent behavior I assume. Other Common Law Trust property rights shall be transferred to the separation of ownership and beneficial interest, commission agent in the transfer of property ownership is not, this is the introduction of trust law the largest controversy.
Banking Personal Financial Services are everywhere, however, a number of banks "zero income" of the intermediary business has faced, the plight of the "negative income". Remove institutional barriers in the financial sector, we found that even the theoretical foundation - the legal nature of the wealth management business in different file qualitative fuzzy even conflicting, a system of legal nature and impact of their rights and obligations of the parties involved, which it has a different risk characteristics and regulatory requirements, "the skin, hair adhere to", combined with China's current regulations and policies pinpoint "what is" necessary starting point of this theory.
Article 9 of the Interim Measures for the Administration of Commercial Bank Personal Financial Services business: integrated financial services, commercial banks in providing financial advisory services to clients on the basis of customer acceptance of commissioned and authorized, in accordance with the customer prior agreement of the investment plans and the way the business of investment and asset management activities. integrated financial service activities, customer contract in accordance with the investment direction and manner authorized by the bank on behalf of customers, investment and asset management, investment returns and risks by the customer or client borne accordance with the agreement with the banking commission, authorized risk responsibility, this provision explicitly characterizing the legal relationship between the banks and their customers for the principal-agent legal relationship. Later the CBRC official in answering a reporter's question, said "the way" and "guidelines" clearly defined personal finance business is to establish the basis of the agency relationship banking ", [3] which further supports this view. Business Bank Personal Financial Services Risk Management Guidelines 9 also provides that commercial banks should be managed separately from the bank assets and client assets, of explicitly related departments and their staff in management, adjust the authorized client assets by first client assets managed by the three parties should be referred to a third-party custodian. "distinguished stressed is a very important property of independence of the trust relationship, Trust Law, the provisions of Article 16 of the trust property belongs to the trustee all property shall not normalized the trustee's own property or the part of the inherent property "fit.
Commercial bank personal finance business slogan "Entrusted by the people, generations Banking to some extent that the legal relationship of trust between banks and their customers. But also for Personal Financial Services the corresponding Category specific analysis, synthesis, concluded.
In accordance with the different ways of management, utilization, and can be divided into financial advisory services and financial services, in accordance with the Bank is committed to ensuring that the gains can be divided into guaranteed return financial plan and non-guaranteed revenue financial plan, according to the "Interim Measures for the Administration of 13 "non-guaranteed revenue financial plan can be divided into guaranteed floating income financial plan and non-guaranteed floating income financial plan."
As mentioned earlier, the "Interim Measures for the Administration of understanding of Article 9 of integrated financial services agency relationship, and financial advisory services. Banks from the perspective of the interests of customers use their information advantage and financial management experience in the field of financial investment, consulting a specialized and personalized services to specific customers. But the banks do not make specific decisions for clients, the management and disposition of client funds, the right to make a final investment decision is still the customers themselves, and bear the resulting benefits and risks, the bank only has the right to obtain certain commission income . [4] This is typical of a technical consulting contract, according to contract law should be commissioned by the relationship. To guarantee revenue financial plan, because the commercial banks in accordance with the contract conditions promised customers pay a fixed income, "and promised to preserve capital and bank savings interest is quite similar in nature to prevent the emergence of banks to borrow the wealth management business in disguise high the interest Lanchu, vicious competition, it is necessary to "fixed income" limit below the deposit interest. "Other investment income by the bank and the customer in accordance with the contract allocation, and shared investment risk financial plan" seems to indicate that the principal investment risk and revenue sharing sharing simple savings, but the proportion of over- small for the main purpose of this wealth management business to hedge against inflation, so still should be characterized as borrowing legal relationship.
Trustee on the trust law only because of the disposition of the trust property, or due to a violation of his management duties, improper handling of trust affairs resulting in the trust property damage "breach of trust purposes shall be made up in their own property trust property. Guaranteed floating income financial plan remains committed to guarantee the payment of principal, no restrictions on the Trust Law, so it can not explain the Trust legal relationship, only for the lending relationship interpreted as when.
But non-guaranteed floating income financial plan is different, "commercial banks in accordance with the agreed terms and the actual investment income paid to the customer gains, does not guarantee that the financial plan of the client principal security" in the actual operation of the business customer account management rights of the funds were all granted the bank, the bank became the nominal owner, self-management and disposition of permissions with the principal-agent system, agents must be strictly in accordance with the content and scope of an authorized agent, to handle the related affairs Otherwise constitutes unauthorized agency or ultra vires agency requirements very different. Non-guaranteed floating income financial plan to meet the fiduciary relationship characterized in the following three points above: First, title and interest in separation and independence of the trust property, the trustee bear only limited liability. So construed as the Trust legal relationship is more properly the interests of customers, while the effective protection of the weak position.
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