【作者】 李嘉宁；

【导师】 顾功耘；

【作者基本信息】 华东政法学院 ， 经济法， 2005， 硕士

【摘要】 我国证券市场经过十多年时间的发展,投资品种和投资者的数量、规模都有了相当程度的增长。委托理财是表现证券市场投资品种创新,投资者广泛参与,投资规模空前巨大的典型代表,其造就了资本市场的疯狂,也无情的将许多热衷参与者葬送在无底的“投资黑洞”中。委托理财规模大、影响广,但是我国专门调整委托理财业务的法律规范基本上仍处于空白状态。随着委托理财业务日渐增加,由此产生的法律纠纷不断出现,法律制度的建设已大大落后于委托理财的实践,引起了各界尤其是监管部门的关注。但目前无论是学界还是业界都对委托理财的合理性和合法性问题;证券市场委托理财的主体资格问题;证券市场委托理财的纠纷的预防与解决机制问题;证券市场委托理财行为的法律性质问题;我国现行证券监管体制对证券市场委托理财纠纷的预防作用;人民法院审理证券市场委托理财纠纷的法律适用问题;我国现阶段仲裁解决委托理财纠纷的可行性等诸多法律问题存有较大的争议,未得出一个权威、统一的结论,而且迄今已有的一些有关此问题的分析文章也比较零散、片面,缺乏系统、深入的研究。　鉴于此,本文以“论我国委托理财的立法完善”为题,抱着尝试的心理,站在前辈研究的基础上,综合运用了比较分析、实证分析和历史分析等研究方法,对委托理财的相关法律问题作了较为系统的总结和分析,以期对我国委托理财立法完善工作提供一点帮助。更多还原

【Abstract】 With the more than ten years development of the security market of our country, the variety and scale of investment and investors’ quantity all get very great growth., Entrusting Financial Transaction is a quite representative model which shown the innovates of the variety of security market investment, investors’participate in extensively and the big scale of investment. Entrusting Financial Transaction bring up dementia of capital market, but a too merciless one is it make a lot of participants with high interest to ruin. Entrusting Financial Transaction is a big thing which have extensive and far-reaching influence. As far as the laws for Entrusting Financial Transaction in china are concerned, It is still a blank. As the business of Entrusting Financial Transaction increases day by day, The legal dispute about it appears constantly. All cirlcles, especially the supervision department begin to notice that The construction of the legal system has already lagged behind greatly to the practice of Entrusting Financial Transaction. Both educational circles and practice circle all have great disputes to a lot of legal questions about Entrusting Financial Transaction such as the question of qualification of the subject; Legal nature of Entrusting Financial Transaction; The prevention of the dispute and settlement mechanism; the question of legal application etc at present. There is no conclusions of an authority and unity, and some existing articles of analysis about this question are all scattered and one-sided so far, lack of the system and deep argumentation. In view of this, the thesis choose the title as On Legislative Perfection of Entrusting Financial Transaction In China. The thesis was made by using comparative analysis, real example analysis and history analysis and it stands on the basis of forefathers’ research results expecting to be able to make a little contribution of Perfection of Entrusting Financial Transaction for our country. The structure of the thesis includes two parts of introduction and text and the text is divided into six chapters again. In chapter one, the writer debated the cause of the development of the entrusting financial transaction, which was developed on the basis of the economic and financial environment, the character of entrusting financial transaction itself, the difficulty of industrial investment and the effect ofMinimum-Proceeds Guarantee Clause. After all, the entrusting financial transaction in China has such characters: Most of the client are listed companies. There are many kinds of trustees which capability were not unique. The capital, which was entrusted, was suspected originally. There was no common entrusting clause at all and the Minimum-Proceeds Guarantee Clause was also prevailing. And there are many problems in the field of the information disclosure and such legislature-eluding actions. In chapter two, the writer debated some theories about the nature of entrusting financial transaction, which were summed up as “Credit”, “Agency By Agreement”and “Trust”. Then, the writer referred the foundation to summarize the nature of entrusting financial transaction. The writer also suggested that, according to the nature of entrusting financial transaction and for the sake of practical purpose, we should include the subject of “entrusting financial transaction”into trust legislature. In article three, the writer made a thorough summarize and analyze to the subject that the entrusting financial transaction contract concerns, which include the classification to the contract, the qualification to be entrusted and the influence generated by the qualification, the effect of the Minimum-Proceeds Guarantee Clause, how to classify the subject of the trustee and its obligation, the standard and way to specify the liability andloss.　In article four, the writer, holding the side of legislator and supervisor, referred the possibility of incoming risk. The writer emphasized that the main reason might be such: the severe problem of information disclosure; the absence of supervision to the action of entrusting financial transaction, the decision-making procedure was far from perfect, the lag of relative legislature, too many department established too much regulations, the lack of the system of credit. In article five, the writer referred that it is urgent to established low-cost and high-effect conflict-settlement systems beside the judicial systems. The arbitration to entrusting financial transaction was a part of security arbitration. But there are still some obstacles to enforce such arbitration. It is mainly because of such element below: the lack of consciousness and knowledge of the arbitration, the agreement was ignored during the course of fulfilling of the contract, the lag of the arbitrator training and the construction of arbitrator institution. In chapter six, on the foundation of the debate above, the writer made some suggestions to the legislature and polices from the these sides, which are to strengthen the government of listed-company, to regulate and specify the business of capital management, to strengthen the supervision of entrusting financial transaction, to confirm theinteger-right of appeal of shareholders and the representative-right of appeal, to intensify the security arbitration constitutions.更多还原