委托理财合同效力问题研究
发布时间：2018-11-03 12:06
【摘要】：随着中国经济快速发展,一方面,人民生活水平提高,民间资本集聚；另一方面,国际地位提升,吸引了境外资本的大规模涌入。面对市场需求,委托理财业务应运而生。然而,我国的金融市场发展尚未成熟,法律监管制度不健全,理财业务趋向混业与金融机构的分业监管存在冲突,同时缺少统一的自律监管机构,理财业务在实践操作中难免会出现矛盾和冲突,这些矛盾中最突出的争议就是委托理财合同效力的认定。 因此本文以“委托理财合同的效力”作为研究对象,综合运用合同法与经济法知识,采用主观分析法及案例分析法对委托理财合同的效力及其影响因素进行研究分析,以期待能够厘清委托理财合同的法律定性,并针对存在的问题提出适当的解决方案。全文正文共分四章： 第一章主要分析委托理财合同效力确定的基础,依据认识的一般规律,先了解事物的一般特性,在此基础上判断他的功效。同理,在判断委托理财合同效力之前,本章着重介绍他的基本特性,合同的性质及表现形式。 第二章主要分析影响委托理财合同效力的因素,根据《合同法》第52条规定合同内容本身违法,违反国家强制性规定,合同自始无效；合同缺少关键条款(风险提示条款)的效力,及合同含有保底条款的效力都是本章讨论的重点,在合同无效的情形下,责任承担的明确至关重要。 第三章主要分析委托理财合同中存在的保底条款,当事人签订的委托理财合同中常存在保底条款,以希冀借此来规避一方责任和义务,本章主要探讨该条款的内容及其效力。 第四章主要阐述对委托理财合同的法律规制,从立法层面、监督层面及司法层面三个方面讨论如何加强对委托理财合同的法规规制,保证委托理财合同合法有效,维护正常的社会经济秩序。
[Abstract]:With the rapid development of China's economy, on the one hand, the people's living standards have improved, and private capital is gathering; on the other hand, the international status has increased, attracting a large influx of foreign capital. Facing the market demand, entrusted financing business came into being. However, the development of financial market in China is not mature, the legal supervision system is not perfect, the financial management business tends to be mixed and there is a conflict between the separate supervision of financial institutions, and there is a lack of unified self-regulatory agencies. Contradictions and conflicts will inevitably occur in the practice of financial management business, and the most prominent dispute is the confirmation of the validity of the entrustment financial management contract. Therefore, this article takes "the validity of the entrustment financing contract" as the research object, synthetically uses the contract law and the economic law knowledge, uses the subjective analysis method and the case analysis method to carry on the research and the analysis to the entrustment financing contract validity and the influence factor. In order to hope to clarify the legal nature of the entrustment financing contract, and propose appropriate solutions to the existing problems. The text is divided into four chapters: the first chapter mainly analyzes the basis of the determination of the effectiveness of the entrusted financial management contract, according to the general law of understanding, first to understand the general characteristics of things, on this basis to judge his efficacy. In the same way, before judging the validity of entrusted financial management contract, this chapter mainly introduces its basic characteristics, nature and form of contract. The second chapter mainly analyzes the factors that affect the validity of the entrusted financial management contract. According to Article 52 of the contract Law, the content of the contract itself is illegal and the contract is invalid since the beginning of the contract because of the violation of the compulsory provisions of the state. The lack of effectiveness of the key clause (risk presentation clause) and the validity of the contract containing the warranty clause are the key points of this chapter. In the case of invalid contract, the clear assumption of liability is of great importance. The third chapter mainly analyzes the guarantee clause in the entrustment financial management contract, which often exists in the entrusted financial management contract signed by the parties, hoping to circumvent the responsibility and obligation of one party. This chapter mainly discusses the content and effectiveness of the clause. The fourth chapter mainly expounds the legal regulation of the entrusted financial management contract, discusses how to strengthen the legal regulation of the entrusted financial management contract from the legislative level, the supervision level and the judicial level, so as to ensure the legality and effectiveness of the entrusted financial management contract. To maintain normal social and economic order.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6;D922.28
本文编号：2307737
[Abstract]:With the rapid development of China's economy, on the one hand, the people's living standards have improved, and private capital is gathering; on the other hand, the international status has increased, attracting a large influx of foreign capital. Facing the market demand, entrusted financing business came into being. However, the development of financial market in China is not mature, the legal supervision system is not perfect, the financial management business tends to be mixed and there is a conflict between the separate supervision of financial institutions, and there is a lack of unified self-regulatory agencies. Contradictions and conflicts will inevitably occur in the practice of financial management business, and the most prominent dispute is the confirmation of the validity of the entrustment financial management contract. Therefore, this article takes "the validity of the entrustment financing contract" as the research object, synthetically uses the contract law and the economic law knowledge, uses the subjective analysis method and the case analysis method to carry on the research and the analysis to the entrustment financing contract validity and the influence factor. In order to hope to clarify the legal nature of the entrustment financing contract, and propose appropriate solutions to the existing problems. The text is divided into four chapters: the first chapter mainly analyzes the basis of the determination of the effectiveness of the entrusted financial management contract, according to the general law of understanding, first to understand the general characteristics of things, on this basis to judge his efficacy. In the same way, before judging the validity of entrusted financial management contract, this chapter mainly introduces its basic characteristics, nature and form of contract. The second chapter mainly analyzes the factors that affect the validity of the entrusted financial management contract. According to Article 52 of the contract Law, the content of the contract itself is illegal and the contract is invalid since the beginning of the contract because of the violation of the compulsory provisions of the state. The lack of effectiveness of the key clause (risk presentation clause) and the validity of the contract containing the warranty clause are the key points of this chapter. In the case of invalid contract, the clear assumption of liability is of great importance. The third chapter mainly analyzes the guarantee clause in the entrustment financial management contract, which often exists in the entrusted financial management contract signed by the parties, hoping to circumvent the responsibility and obligation of one party. This chapter mainly discusses the content and effectiveness of the clause. The fourth chapter mainly expounds the legal regulation of the entrusted financial management contract, discusses how to strengthen the legal regulation of the entrusted financial management contract from the legislative level, the supervision level and the judicial level, so as to ensure the legality and effectiveness of the entrusted financial management contract. To maintain normal social and economic order.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6;D922.28
【参考文献】
相关期刊论文 前1条
1 陆晓妹;郑伟明;;论委托理财保底条款之效力[J];皖西学院学报;2007年04期
，本文编号：2307737
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