公募基金投资利益冲突与权益保护制度研究
发布时间：2019-01-17 09:17
【摘要】：我国公募基金行业自上世纪90年代末发展至今，因其投资门槛低、专业投资管理等独有的特点，，已成为证券市场最重要的专业大众投资工具之一。然而在行业爆炸式发展的背景下，如何有效制衡利益冲突和保护投资者权益这一信托关系中的核心问题一直未能有效解决，导致市场上频频发生不当关联交易、内幕交易等损害投资者利益的恶性事件，给整个资本市场的诚信和健康发展带来了极为恶劣的影响。如何建设和完善符合我国基金行业发展现状并具有一定前瞻性的利益冲突制衡法律制度体系，是一个非常值得研究的课题。本文希望通过对我国公募基金的基础法律关系和利益冲突所涉基本法律问题的研究，找到利益冲突行为发生的根源，从而尝试对现有利益冲突制衡机制提出有针对性的完善建议。 本文第一章分析我国公募基金的法律性质，并研究了契约型和公司型两类公募基金组织架构下各主体之间的法律关系，从根本上说明利益冲突存在的必然性，并为接下来具体研究利益冲突行为的成因和制衡机制提供基础。 第二章分析我国公募基金投资中的利益冲突的特征和各类利益冲突行为的成因。基于我国公募基金的契约型组织架构、投资者分散、关联方众多等特征，使得利益冲突行为相比一般信托关系更为复杂、隐蔽和多样化。针对利益冲突中的具体问题，本章重点分析了关联方的范围和基金运作中的利益位阶，明确关联交易的范畴和投资者利益优先的最高准则。结合笔者在公募基金行业的从业经历，本章最后分析了公募基金投资利益冲突类型及其成因，主要包括不当关联交易、违反公平交易原则、个人不正当交易、公募基金收入模式导致的利益冲突和基金行业特征导致的利益冲突。 第三章从基金托管人的监督、独立董事制度、基金份额持有人大会等方面研究了我国现有的利益冲突内部制衡机制，分析了其中的缺陷和不足，并尝试提出了针对性的完善建议。此外还分析了基金管理人内控制度的重要性和合理使用管理层激励的意义，提出管理层基金持有激励优于股权持有激励的观点。由于公司型基金在治理结构和利益冲突规制方面的优势，目前美国等发达基金市场已形成公司型基金占绝对主导的趋势，我国也应积极尝试引入公司型基金，并相应建立配套的法律制度。 第四章分析了利益冲突外部制衡机制的特点和重要性，并着重对民事责任承担和诉讼机制、行政监管、刑事责任追究和强制信息披露等外部制衡机制中存在的缺陷进行分析，提出改进建议。 结语对本文的主要内容和观点进行了总结。
[Abstract]:Since the development of the public fund industry in China in the late 1990s, because of its low investment threshold and unique characteristics of professional investment management, it has become one of the most important professional public investment tools in the securities market. However, under the background of the explosive development of the industry, how to effectively balance the conflict of interest and protect the rights and interests of investors, the core of the trust relationship has not been effectively resolved, resulting in frequent occurrence of improper related transactions in the market. Insider trading and other pernicious events harming the interests of investors have brought a very bad effect on the integrity and healthy development of the whole capital market. How to construct and perfect the legal system of balancing and balancing interest in accordance with the current situation of fund industry in our country and with certain foresight is a subject worth studying. This paper hopes to find out the root of the conflict of interest behavior through the study of the basic legal relationship of the public fund and the basic legal problems of the conflict of interest in our country. In order to try to the existing conflict of interest checks and balances mechanism to put forward the pertinence consummation suggestion. The first chapter analyzes the legal nature of the public offering fund in China, and studies the legal relationship between the subjects under the organizational framework of contractual and corporate public funds, which fundamentally explains the inevitability of the existence of conflicts of interest. It also provides the basis for further research on the causes of conflicts of interest and the mechanism of checks and balances. The second chapter analyzes the characteristics of the conflicts of interest and the causes of all kinds of conflicts of interest in the investment of public funds in China. Based on the contractual organizational structure of public funds in China, the diversification of investors and numerous related parties, the conflict of interest behavior is more complex, covert and diversified than the general trust relationship. Aiming at the specific problems in the conflict of interest, this chapter focuses on the scope of the related party and the level of interest in the operation of the fund, and clarifies the category of related party transactions and the highest criterion of the priority of investors' interests. Combined with the author's experience in the public offering fund industry, this chapter finally analyzes the types and causes of the conflict of interest in the investment of the public offering fund, mainly including improper related party transactions, violation of the principle of fair trade, and individual unfair trading. The conflict of interest caused by the revenue model of public fund and the conflict of interest caused by the characteristics of fund industry. The third chapter studies the internal checks and balances mechanism of interest conflict in our country from the supervision of fund custodian, the independent director system, the general meeting of fund share holders and so on, and analyzes its defects and shortcomings. And tries to put forward the pertinence consummation suggestion. In addition, the importance of internal control system of fund manager and the significance of rational use of management incentive are analyzed, and the point of view that management fund holding incentive is superior to equity holding incentive is put forward. Because of the advantages of corporate funds in the governance structure and conflict of interest regulation, the developed fund market such as the United States has formed a trend of absolute dominance of corporate funds, China should also actively try to introduce corporate funds. And the corresponding establishment of a supporting legal system. The fourth chapter analyzes the characteristics and importance of the external checks and balances mechanism of conflict of interest, and focuses on the analysis of the defects in the external checks and balances mechanism, such as civil liability and litigation mechanism, administrative supervision, criminal liability investigation and compulsory information disclosure. Put forward suggestions for improvement. The conclusion summarizes the main contents and viewpoints of this paper.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.28;F832.51
本文编号：2409877
[Abstract]:Since the development of the public fund industry in China in the late 1990s, because of its low investment threshold and unique characteristics of professional investment management, it has become one of the most important professional public investment tools in the securities market. However, under the background of the explosive development of the industry, how to effectively balance the conflict of interest and protect the rights and interests of investors, the core of the trust relationship has not been effectively resolved, resulting in frequent occurrence of improper related transactions in the market. Insider trading and other pernicious events harming the interests of investors have brought a very bad effect on the integrity and healthy development of the whole capital market. How to construct and perfect the legal system of balancing and balancing interest in accordance with the current situation of fund industry in our country and with certain foresight is a subject worth studying. This paper hopes to find out the root of the conflict of interest behavior through the study of the basic legal relationship of the public fund and the basic legal problems of the conflict of interest in our country. In order to try to the existing conflict of interest checks and balances mechanism to put forward the pertinence consummation suggestion. The first chapter analyzes the legal nature of the public offering fund in China, and studies the legal relationship between the subjects under the organizational framework of contractual and corporate public funds, which fundamentally explains the inevitability of the existence of conflicts of interest. It also provides the basis for further research on the causes of conflicts of interest and the mechanism of checks and balances. The second chapter analyzes the characteristics of the conflicts of interest and the causes of all kinds of conflicts of interest in the investment of public funds in China. Based on the contractual organizational structure of public funds in China, the diversification of investors and numerous related parties, the conflict of interest behavior is more complex, covert and diversified than the general trust relationship. Aiming at the specific problems in the conflict of interest, this chapter focuses on the scope of the related party and the level of interest in the operation of the fund, and clarifies the category of related party transactions and the highest criterion of the priority of investors' interests. Combined with the author's experience in the public offering fund industry, this chapter finally analyzes the types and causes of the conflict of interest in the investment of the public offering fund, mainly including improper related party transactions, violation of the principle of fair trade, and individual unfair trading. The conflict of interest caused by the revenue model of public fund and the conflict of interest caused by the characteristics of fund industry. The third chapter studies the internal checks and balances mechanism of interest conflict in our country from the supervision of fund custodian, the independent director system, the general meeting of fund share holders and so on, and analyzes its defects and shortcomings. And tries to put forward the pertinence consummation suggestion. In addition, the importance of internal control system of fund manager and the significance of rational use of management incentive are analyzed, and the point of view that management fund holding incentive is superior to equity holding incentive is put forward. Because of the advantages of corporate funds in the governance structure and conflict of interest regulation, the developed fund market such as the United States has formed a trend of absolute dominance of corporate funds, China should also actively try to introduce corporate funds. And the corresponding establishment of a supporting legal system. The fourth chapter analyzes the characteristics and importance of the external checks and balances mechanism of conflict of interest, and focuses on the analysis of the defects in the external checks and balances mechanism, such as civil liability and litigation mechanism, administrative supervision, criminal liability investigation and compulsory information disclosure. Put forward suggestions for improvement. The conclusion summarizes the main contents and viewpoints of this paper.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.28;F832.51
【参考文献】
相关博士学位论文 前1条
1 陈星德;证券投资基金利益冲突的法律研究[D];中国政法大学;2007年
本文编号：2409877
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