論基金持有人對基金管理人的制約機制
發(fā)布時間：2019-01-04 09:11
【摘要】： 作為新興市場,近年來,我國資本市場的發(fā)展尤為迅猛。證券投資基金業(yè)亦隨之經(jīng)歷了高速增長。但與全球同類市場相似,我國基金業(yè)在高速發(fā)展的同時,仍回避不了問題的存在。其中,基金管理人違背信賴義務,在管理與運行基金財產(chǎn)的過程中,行為不當,違法違規(guī),侵犯基金持有人權(quán)利,即屬為害甚重的一個。由此,如何對基金管理人進行有效地制約和監(jiān)督,使其恪守信賴義務,從而保障基金份額持有人的利益,就成了擺在實務界和學界面前的一個課題。 對于基金管理人行為的制約,從主體來分,可以有許多層面,包括:政府主管部門的監(jiān)管、基金托管人的監(jiān)督、基金管理人的內(nèi)部治理以及本文所論及的基金持有人的制約。其中,政府主管部門的監(jiān)管是外部制約,而基金持有人、基金托管人與基金管理人的治理則屬于內(nèi)部制約。在這些制約模式中,無論是基金管理人的內(nèi)部治理、基金托管人的獨立監(jiān)控以及政府主管部門的行政監(jiān)管對于基金管理人的行為制約都是不可或缺的重要環(huán)節(jié),但也都存在其明顯的弊端。雖然基于證券投資基金的信托法性質(zhì),基金持有人對于基金管理人的行為不可過多干預,但基金持有人由于其在證券投資基金法律關(guān)系中的特殊地位,對于基金管理人不當行為的制約及其信賴義務的恪守,都有無可代替的意義。 本文將按邏輯順序,以遞進式結(jié)構(gòu)分四個章節(jié)進行論述。在導言中,筆者首先從證監(jiān)會查處的兩起基金經(jīng)理違法案例入手,站在行業(yè)整體背景的角度,對近年來,我國基金業(yè)的基本發(fā)展情況做簡要回顧。隨后筆者將羅列在證券投資基金中能夠?qū)鸸芾砣似鹬萍s作用的幾大主體,并著重從基金份額持有人角度展開,引出進一步論述。在第一章中,本文首先對于證券投資基金這一概念的內(nèi)涵進行了深入剖析,通過對學界不同理論的分析,得出個人觀點。并在對內(nèi)涵深入分析的基礎(chǔ)上,對我國證券投資基金的法律關(guān)系深入探討,將證券投資基金的法律性質(zhì)界定為信托法律關(guān)系,并比較分析了各證券投資基金法律關(guān)系的模式。第二章,本文在前一章節(jié)對證券投資基金法律關(guān)系分析的基礎(chǔ)上,對基金持有人與基金管理人關(guān)系探究,在該章中,筆者首先對基金持有人與基金管理人的關(guān)系進行定位,進而論述了構(gòu)建持有人制約機制的必要性,之后對基金持有人的權(quán)利性質(zhì)進行了分析,從而指出了由此產(chǎn)生的基金持有人制約基金管理人機制所存在的障礙。在第三章中,本文將圍繞基金管理人所擔負的信賴義務進行展開。在對信賴義務進行總體分析后,對于信賴義務下的子義務,即注意義務與忠實義務做深入闡述。第四章,為本文重點。將著重探討基金持有人對于基金管理人的制約機制。分事前制約的基金持有人大會制度、事中監(jiān)督的信息披露制度以及事后約束的持有人訴權(quán)這三個角度,分別對基金持有人制約機制運行的全過程,進行具體分析,發(fā)現(xiàn)問題,并提出建議。 本文的寫作與論述基于經(jīng)濟法與商法基礎(chǔ)理論,較多采取與成熟市場相關(guān)法制的比較法研究,綜合運用結(jié)構(gòu)分析、歷史分析、系統(tǒng)分析及實證分析等研究手段進行分析與論證。在對本文論題的研究過程,筆者同時借鑒了英美信托法理論以及資本市場理論,對證券投資基金的內(nèi)涵與性質(zhì)、我國證券投資基金法律關(guān)系中,基金管理人與基金份額持有人的法律地位進行了較為系統(tǒng)的分析,并最終對我國基金份額持有人制約基金管理人時,各項機制的完善提出了自己的建議,希望能對相關(guān)研究領(lǐng)域有所貢獻,同時也希望本文對于我國證券投資基金領(lǐng)域的相關(guān)實踐能夠有所啟示。
[Abstract]:As a new market, in recent years, the development of China's capital market is particularly rapid. The securities investment fund industry has also experienced high-speed growth. But with the same kind of market in the world, the fund industry of our country still can't avoid the existence of the problem at the same time of high-speed development. In this case, the Fund Manager is in breach of the trust obligation. In the process of management and operation of the property of the Fund, the act is improper, the violation of the law and the violation of the rights of the fund holder are one of the most harmful. Therefore, how to restrict and supervise the fund manager effectively, so as to guarantee the benefit of the fund share holder, it is an issue before the substantive and academic circles. For the restriction of the behavior of the fund manager, there are many aspects from the main body, including: the supervision of the government department, the supervision of the fund custodian, the internal governance of the fund manager, and the fund holder discussed herein The regulation of the government department is an external constraint, and the management of the fund holder, the fund custodian and the fund manager is internal. In these constraints, both the internal governance of the Fund Manager, the independent monitoring of the Fund Custodian and the administrative regulation of the government authorities are an essential and important link to the management of the Fund, but it is also obvious In spite of the trust law of the securities investment fund, the fund holder has no more intervention on the behavior of the fund manager, but the fund holder's special status in the legal relationship of the securities investment fund, the restriction of the improper behavior of the fund manager and the trust obligation There's no substitute for it. Meaning. In this paper, four chapters are divided into four chapters in the order of logic. In the introduction, the author first starts with the two fund managers' illegal cases investigated and dealt with by the SFC, and the basic development of China's fund industry in recent years is based on the whole background of the industry. In this paper, a brief review is made. The author will then list the main body of the securities investment fund which can restrict the management of the fund, and focus on the development and extraction from the angle of the holder of the fund. Further, in the first chapter, the paper first analyzes the connotation of the concept of the securities investment fund, and through the analysis of the different theories of the academic circle, Based on the analysis of the connotation, the legal relationship between the securities investment fund and the securities investment fund is defined as the relationship between the trust law and the law of the securities investment fund, and the law of the securities investment fund is compared and analyzed. In the second chapter, on the basis of the analysis of the legal relationship between the fund holder and the fund manager in the previous section, the author first discusses the relationship between the fund holder and the fund manager. This paper discusses the necessity of constructing the restriction mechanism of the holder, and then analyzes the property of the fund holder, and points out that the fund-holder's mechanism of the fund manager is restricted by the fund-holder. The barriers that exist. In chapter III, this article will surround the trust of the Fund Manager On the basis of the overall analysis of the trust obligation, the obligations under the trust obligation, that is, the duty of attention and the duty of loyalty, are to be paid attention to. in-depth. chap. IV, The focus of this article will focus on the discussion of fund holders for fund managers The restriction mechanism of the fund holder in advance, the information disclosure system of the supervision in the event and the right of the holder of the post-event constraint, respectively, analyzes the whole process of the operation of the restriction mechanism of the fund holder, and finds the problem, This paper is based on the basic theory of economic law and commercial law, and more adopts the comparative law of the legal system related to the mature market, the comprehensive application of the structure analysis, the historical analysis, the system analysis and the empirical analysis. In this paper, the author also draws on the theory of the Anglo-American Trust Law and the theory of capital market, and the connotation and the nature of the securities investment fund, and the investment of our country's securities. In the legal relation of the fund, the legal status of the fund manager and the fund share holder is analyzed systematically, and finally, when the fund manager of the fund is restricted by the fund share holder, the improvement of the various mechanisms put forward its own proposal, and it is hoped to be relevant The research field has contributed, and it is also hoped that this paper is related to the securities investment fund field in China.
【學位授予單位】：華東政法大學
【學位級別】：碩士
【學位授予年份】：2008
【分類號】：F832.51
本文編號：2400086
[Abstract]:As a new market, in recent years, the development of China's capital market is particularly rapid. The securities investment fund industry has also experienced high-speed growth. But with the same kind of market in the world, the fund industry of our country still can't avoid the existence of the problem at the same time of high-speed development. In this case, the Fund Manager is in breach of the trust obligation. In the process of management and operation of the property of the Fund, the act is improper, the violation of the law and the violation of the rights of the fund holder are one of the most harmful. Therefore, how to restrict and supervise the fund manager effectively, so as to guarantee the benefit of the fund share holder, it is an issue before the substantive and academic circles. For the restriction of the behavior of the fund manager, there are many aspects from the main body, including: the supervision of the government department, the supervision of the fund custodian, the internal governance of the fund manager, and the fund holder discussed herein The regulation of the government department is an external constraint, and the management of the fund holder, the fund custodian and the fund manager is internal. In these constraints, both the internal governance of the Fund Manager, the independent monitoring of the Fund Custodian and the administrative regulation of the government authorities are an essential and important link to the management of the Fund, but it is also obvious In spite of the trust law of the securities investment fund, the fund holder has no more intervention on the behavior of the fund manager, but the fund holder's special status in the legal relationship of the securities investment fund, the restriction of the improper behavior of the fund manager and the trust obligation There's no substitute for it. Meaning. In this paper, four chapters are divided into four chapters in the order of logic. In the introduction, the author first starts with the two fund managers' illegal cases investigated and dealt with by the SFC, and the basic development of China's fund industry in recent years is based on the whole background of the industry. In this paper, a brief review is made. The author will then list the main body of the securities investment fund which can restrict the management of the fund, and focus on the development and extraction from the angle of the holder of the fund. Further, in the first chapter, the paper first analyzes the connotation of the concept of the securities investment fund, and through the analysis of the different theories of the academic circle, Based on the analysis of the connotation, the legal relationship between the securities investment fund and the securities investment fund is defined as the relationship between the trust law and the law of the securities investment fund, and the law of the securities investment fund is compared and analyzed. In the second chapter, on the basis of the analysis of the legal relationship between the fund holder and the fund manager in the previous section, the author first discusses the relationship between the fund holder and the fund manager. This paper discusses the necessity of constructing the restriction mechanism of the holder, and then analyzes the property of the fund holder, and points out that the fund-holder's mechanism of the fund manager is restricted by the fund-holder. The barriers that exist. In chapter III, this article will surround the trust of the Fund Manager On the basis of the overall analysis of the trust obligation, the obligations under the trust obligation, that is, the duty of attention and the duty of loyalty, are to be paid attention to. in-depth. chap. IV, The focus of this article will focus on the discussion of fund holders for fund managers The restriction mechanism of the fund holder in advance, the information disclosure system of the supervision in the event and the right of the holder of the post-event constraint, respectively, analyzes the whole process of the operation of the restriction mechanism of the fund holder, and finds the problem, This paper is based on the basic theory of economic law and commercial law, and more adopts the comparative law of the legal system related to the mature market, the comprehensive application of the structure analysis, the historical analysis, the system analysis and the empirical analysis. In this paper, the author also draws on the theory of the Anglo-American Trust Law and the theory of capital market, and the connotation and the nature of the securities investment fund, and the investment of our country's securities. In the legal relation of the fund, the legal status of the fund manager and the fund share holder is analyzed systematically, and finally, when the fund manager of the fund is restricted by the fund share holder, the improvement of the various mechanisms put forward its own proposal, and it is hoped to be relevant The research field has contributed, and it is also hoped that this paper is related to the securities investment fund field in China.
【學位授予單位】：華東政法大學
【學位級別】：碩士
【學位授予年份】：2008
【分類號】：F832.51
【引證文獻】
相關(guān)碩士學位論文 前4條
1 岳宇超;我國中小企業(yè)銀行之法律構(gòu)建[D];中國政法大學;2011年
2 蘇來琪;證券投資基金管理人不當行為法律問題研究[D];復旦大學;2011年
3 張月萍;基金經(jīng)理個人交易的法律規(guī)制研究[D];福建師范大學;2011年
4 田地;論證券投資基金持有人利益保護[D];黑龍江大學;2011年
，本文編號：2400086
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