论基金持有人对基金管理人的制约机制
发布时间：2019-01-04 09:11
【摘要】： 作为新兴市场,近年来,我国资本市场的发展尤为迅猛。证券投资基金业亦随之经历了高速增长。但与全球同类市场相似,我国基金业在高速发展的同时,仍回避不了问题的存在。其中,基金管理人违背信赖义务,在管理与运行基金财产的过程中,行为不当,违法违规,侵犯基金持有人权利,即属为害甚重的一个。由此,如何对基金管理人进行有效地制约和监督,使其恪守信赖义务,从而保障基金份额持有人的利益,就成了摆在实务界和学界面前的一个课题。 对于基金管理人行为的制约,从主体来分,可以有许多层面,包括:政府主管部门的监管、基金托管人的监督、基金管理人的内部治理以及本文所论及的基金持有人的制约。其中,政府主管部门的监管是外部制约,而基金持有人、基金托管人与基金管理人的治理则属于内部制约。在这些制约模式中,无论是基金管理人的内部治理、基金托管人的独立监控以及政府主管部门的行政监管对于基金管理人的行为制约都是不可或缺的重要环节,但也都存在其明显的弊端。虽然基于证券投资基金的信托法性质,基金持有人对于基金管理人的行为不可过多干预,但基金持有人由于其在证券投资基金法律关系中的特殊地位,对于基金管理人不当行为的制约及其信赖义务的恪守,都有无可代替的意义。 本文将按逻辑顺序,以递进式结构分四个章节进行论述。在导言中,笔者首先从证监会查处的两起基金经理违法案例入手,站在行业整体背景的角度,对近年来,我国基金业的基本发展情况做简要回顾。随后笔者将罗列在证券投资基金中能够对基金管理人起制约作用的几大主体,并着重从基金份额持有人角度展开,引出进一步论述。在第一章中,本文首先对于证券投资基金这一概念的内涵进行了深入剖析,通过对学界不同理论的分析,得出个人观点。并在对内涵深入分析的基础上,对我国证券投资基金的法律关系深入探讨,将证券投资基金的法律性质界定为信托法律关系,并比较分析了各证券投资基金法律关系的模式。第二章,本文在前一章节对证券投资基金法律关系分析的基础上,对基金持有人与基金管理人关系探究,在该章中,笔者首先对基金持有人与基金管理人的关系进行定位,进而论述了构建持有人制约机制的必要性,之后对基金持有人的权利性质进行了分析,从而指出了由此产生的基金持有人制约基金管理人机制所存在的障碍。在第三章中,本文将围绕基金管理人所担负的信赖义务进行展开。在对信赖义务进行总体分析后,对于信赖义务下的子义务,即注意义务与忠实义务做深入阐述。第四章,为本文重点。将着重探讨基金持有人对于基金管理人的制约机制。分事前制约的基金持有人大会制度、事中监督的信息披露制度以及事后约束的持有人诉权这三个角度,分别对基金持有人制约机制运行的全过程,进行具体分析,发现问题,并提出建议。 本文的写作与论述基于经济法与商法基础理论,较多采取与成熟市场相关法制的比较法研究,综合运用结构分析、历史分析、系统分析及实证分析等研究手段进行分析与论证。在对本文论题的研究过程,笔者同时借鉴了英美信托法理论以及资本市场理论,对证券投资基金的内涵与性质、我国证券投资基金法律关系中,基金管理人与基金份额持有人的法律地位进行了较为系统的分析,并最终对我国基金份额持有人制约基金管理人时,各项机制的完善提出了自己的建议,希望能对相关研究领域有所贡献,同时也希望本文对于我国证券投资基金领域的相关实践能够有所启示。
[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.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：F832.51
本文编号：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.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：F832.51
【引证文献】
相关硕士学位论文 前4条
1 岳宇超;我国中小企业银行之法律构建[D];中国政法大学;2011年
2 苏来琪;证券投资基金管理人不当行为法律问题研究[D];复旦大学;2011年
3 张月萍;基金经理个人交易的法律规制研究[D];福建师范大学;2011年
4 田地;论证券投资基金持有人利益保护[D];黑龙江大学;2011年
，本文编号：2400086
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