資産管理內部法律關係之定性：回顧與前瞻

The Legal Characterization of the Internal Asset Management Relationship; Looking Back and Looking Forward

金融資産管理業進入了調整期。回顧歷史路徑，能對其未來發展作出更科學的判斷。資産管理內部法律關係即委托人和管理人間的關係存在异化和不確定性是既有的市場環境下形成的主要問題，未必會由于監管整頓而輕易化解。管理人主動性獨立性不足、二者之間關係的名不符實構成了資管業務的核心法律風險。純粹規避監管的通道嵌套安排混淆了法律關係，可在現狀下被重新定性爲委托或在未來面向信托化改造。但很多具體資管內部關係的法律性質不宜被簡單界定爲信托或委托，以中間形態理解之亦不無道理。銀監會證監會規章建構的規則體系雖然有意將資管關係塑造爲信托，但也尊重現實，幷未在各個方面强求。從證券舉牌這一可謂試金石的領域之實踐看，監管者曾允許特定委托人或投資顧問代替資管人履行舉牌義務，但不豁免資管人的合規審查義務。資管人可能會讓渡控制權給委托人，但不完全受委托人指令控制。這同樣不是單純的信托或委托定性所能涵蓋。故在過渡期內可以適度尊重真實商事博弈中形成的資管關係。 The industry of financial asset management is entering a period of transfer. It is necessary to looking back upon its history to have a reasonable judgment on its future development. The inner relationship of asset management, which refers to the one between the client and manager formed in the realistic environment, is the core legal relationship. It is distorted and brings uncertainties, but will not be reconstructed easily by reg­ulatory measures. The lack of independence and activeness of the trustee gives birth to the inconsistency of the appearance and essence of the relationship, constituting the core legal risk in such business. Some ar­rangements can be re-characterized either as an agency or be reconstructed as a trust, but some may be better understood as a middle type. Judging by the regulations, the trust and securities regulators may intend to shape asset management relationship as a trust, but respect the realities. The practices in the securities mar­ket in which a holder of 5% of shares is obliged to disclose show that advisors and trustors can be given the control right and obligations regarding the shares, but the trustees are not free of duty and may take back the control. Hence it is suggested to respect the balance achieved by market repeated games, to recognize the in­terim status of the asset management relationship at the current stage. It is not beneficial to compulsorily put the result of market evolution into the shoes of regulation.

The industry of financial asset management is entering a period of transfer. It is necessary to looking back upon its history to have a reasonable judgment on its future development. The inner relationship of asset management, which refers to the one between the client and manager formed in the realistic environment, is the core legal relationship. It is distorted and brings uncertainties, but will not be reconstructed easily by reg­ulatory measures. The lack of independence and activeness of the trustee gives birth to the inconsistency of the appearance and essence of the relationship, constituting the core legal risk in such business. Some ar­rangements can be re-characterized either as an agency or be reconstructed as a trust, but some may be better understood as a middle type. Judging by the regulations, the trust and securities regulators may intend to shape asset management relationship as a trust, but respect the realities. The practices in the securities mar­ket in which a holder of 5% of shares is obliged to disclose show that advisors and trustors can be given the control right and obligations regarding the shares, but the trustees are not free of duty and may take back the control. Hence it is suggested to respect the balance achieved by market repeated games, to recognize the in­terim status of the asset management relationship at the current stage. It is not beneficial to compulsorily put the result of market evolution into the shoes of regulation.