It was first the People's Bank of China, and later the China Banking Regulatory Commission. Here are the details.
Article 51 Trust and investment companies shall formulate trust business and other business rules in accordance with regulations, establish and improve business management systems and internal control systems, and report them to the People's Bank of China for the record.
A trust and investment company shall set up an internal audit department to audit and supervise its business activities. The internal audit department of a trust and investment company shall submit an internal audit report to the board of directors of the company at least once every six months, and send a copy of the above report to the People's Bank of China.
Article 52 A trust and investment company shall establish accounts according to law, accounting for trust business and non-trust business respectively, and accounting for various trust businesses separately. The specific financial accounting system shall comply with the relevant provisions of the Ministry of Finance.
Article 53 A trust and investment company shall, in accordance with the relevant provisions of the State, establish and improve its financial accounting system, and truly record and comprehensively reflect its business activities and financial status. The company's annual financial accounting report shall be audited by a certified public accountant with corresponding qualifications.
Trust and investment companies shall submit business reports, financial and accounting statements of trust business and non-trust business, trust account directories and other relevant materials to the People's Bank of China and relevant departments in accordance with regulations.
Article 54 The trust business department of a trust and investment company shall be independent of other departments of the company in business, and its personnel shall not interact with those of other departments of the company, and specific business information shall not be shared with other departments of the company.
Article 55 The People's Bank of China may conduct regular or irregular inspections on the business activities of trust and investment companies. When the People's Bank of China deems it necessary, it may order a trust and investment company to hire an intermediary agency with corresponding qualifications to audit its business and financial status.
Trust and investment companies shall provide relevant business and financial statements and materials as required by the People's Bank of China, and truthfully introduce relevant business.
Article 56 The People's Bank of China shall implement the post qualification examination system for the senior managers of trust and investment companies. Those who have not passed the qualification examination or examination of the People's Bank of China shall not serve.
The trust and investment company shall audit the outgoing senior managers and report the audit results to the People's Bank of China for the record. When the legal representative of a trust and investment company changes, the original legal representative shall not leave his post before the new legal representative is approved by the People's Bank of China.
Article 57 The People's Bank of China shall implement the trust business qualification examination system for the trust practitioners of trust and investment companies. Those who pass the examination will be awarded the Qualification Certificate of Trust Practitioners by the People's Bank of China; Without examination or unqualified examination, no trust business may be handled. Specific assessment methods shall be formulated separately by the People's Bank of China.
Article 58 The People's Bank of China has the right to disqualify the senior managers and trust practitioners of trust and investment companies who violate laws, administrative regulations or the relevant provisions of the People's Bank of China.
Article 59 The People's Bank of China has the right to question the senior managers of trust and investment companies about major problems found in supervision and order them to take effective measures to make corrections within a time limit.
Article 60 If the management of a trust and investment company is chaotic and its operation is in trouble, the People's Bank of China shall order the company to take measures to rectify or reorganize, and suggest replacing the senior management personnel. The People's Bank of China may take over when it deems it necessary.
Article 61 A trust and investment company may establish a trade association and practice trade self-discipline.
Trade associations of trust and investment companies shall accept the guidance and supervision of the People's Bank of China.
Later, it was the China Banking Regulatory Commission.
Specifically, the trust industry is known as one of the four financial pillars, but for a long time, the trust industry lacks an authoritative and effective regulatory framework. No matter during the People's Bank of China period or the current CBRC, the specific functional departments that manage trust companies are only trust offices under non-bank companies. This institutional setup can't meet the objective needs of trust industry development and supervision in the new period, and it doesn't match the important position of trust industry. At present, the lag in the construction of trust laws and regulations may be directly related to the serious shortage of trust supervision and management institutions in hierarchy and staffing.
In addition to the above problems, another important defect of the trust supervision structure is that the supervision and management of the trust industry is actually artificially divided. At present, in addition to the "two regulations" and other laws and regulations adopted by the China Banking Regulatory Commission to regulate and supervise trust companies, there are also corresponding laws and regulations to regulate securities business, namely the Interim Measures for the Administration of Securities Investment Funds and the Pilot Measures for Open-ended Securities Investment Funds; The second is about the provisions on entrusted investment management business of comprehensive securities companies. It can be seen that the laws and regulations of trust supervision are actually reflected in three aspects: the CBRC manages trust companies; In charge of fund companies; In charge of brokers. We can separate the fund from trust jurisprudence to form another system, or it may not be suitable for changing the management structure formed by history, so the problem is how to keep these three aspects consistent.
In addition, brokers and securities investment funds are supervised by China; Trust companies are supervised by CBRC; Industrial investment funds shall be managed by the State Planning Commission as a whole; And a large number of private equity funds are still in the regulatory blank area. This means that under the same sky, doing the same business or actually doing the same business, just because the company category or enterprise name is different, it may belong to completely different legal constraints, belong to different authorities and accept different management.
2. What are the laws and regulations on trust in China?
One Law and Three Regulations: The first law refers to the People's Republic of China (PRC) Trust Law, and the third regulation refers to the Measures for the Administration of Trust Companies, the Measures for the Administration of Fund Trust Plans of Trust Companies and the Measures for the Administration of Net Capital of Trust Companies.
3. Are there any laws and regulations to supervise the trust?
At present, there are many laws and regulations governing trusts. Including:
1. 1. Trust Basis-People's Republic of China (PRC) Trust Law
The contents include general principles, establishment of trust, trust property, trust parties (clients), change and termination of trust, charitable trust and supplementary provisions. Trust law is the law with the highest level of effectiveness, which stipulates the relevant elements of trust system. It will come into effect on 20011kloc-0/,which was formulated earlier and stipulated the principle of content comparison. The design of transaction structure, the formulation of trust cooperation, the establishment and management of trust projects and the termination of trust all need to be based on trust law.
2. Terms of Framework Trust-"Three Provisions"
(1) Measures for the Administration of Trust Companies. Adopted by the President of the Economic and Social Council at its 55th meeting, on 28 February 2006. It is hereby promulgated and shall come into force as of March 1 2007.
(2) Measures for the Administration of Fund Trust Plans of Trust Companies. Adopted at the 78th Chairman's Meeting of China Banking Regulatory Commission on June 5th+February 6th+July 5th, 2008. It is hereby promulgated and shall come into force as of the date of promulgation.
(3) Measures for the Administration of Net Capital of Trust Companies. In view of trust companies, trusts in trust business (involving public property interests) and basic provisions of trust companies, the CBRC has formulated three regulations to realize the management of trust companies' operations.
Four, the domestic trust "one law, three chapters and many regulations"
When it comes to the trust laws and regulations system in China, there is usually a saying of "one law and three regulations". Among them, "One Law" refers to "People's Republic of China (PRC) Trust Law" (hereinafter referred to as "Trust Law"), so what are the "three regulations"? Refer to the administrative measures for trust companies, the administrative measures for net capital of trust companies (hereinafter referred to as the administrative measures for fund plans of trust companies) and the administrative measures for fund plans of trust companies (hereinafter referred to as the administrative measures for trust companies) respectively. Therefore, "one law and three regulations" has become a popular saying in the domestic trust legal system.
However, it seems that it is not comprehensive enough to summarize China's trust legal system with "one law and three regulations". Why? Besides the above-mentioned "one law and three regulations", there are a large number of the State Council normative documents and departmental normative documents in the domestic trust legal system, such as notices, announcements, guidance opinions and replies. , issued in the name of the State Council, China Banking Regulatory Commission or China Insurance Regulatory Commission (or its general office). Although the effectiveness level is not high, they are of great guiding significance to China's trust business and are also part of the regulatory basis. Therefore, it will be biased to comprehensively summarize China's trust legal system and only use "one law and three regulations" instead of other normative documents.
How to summarize these numerous other normative documents? We can find that compared with other normative documents, departmental rules have the word "rules", and the difference lies in the word "chapter", so we can use "chapter" to refer to departmental rules to show the difference. However, due to the large number of other normative documents, which change at any time, the word "duo" is enough to explain its number. Therefore, the author changed the popular "one law and three regulations" into "one law, three chapters and many regulations", which can be used as an accurate summary of China's trust legal system.
Then, what is the relationship between "one law, three chapters and many regulations"?
First, the relationship at the level of legal effect.
The levels of laws and regulations in China are roughly as follows: Constitution-laws-administrative regulations-local regulations and departmental regulations-other normative documents issued by the State Council and its ministries and local governments. From the perspective of jurisprudence, the legal nature of trust law is a national law formulated and passed by the National People's Congress Standing Committee (NPCSC), which is naturally at the top of the pyramid in the system of "one law, three chapters and many regulations". The nature of the "Three Chapters of the Contract Law" is a departmental regulation issued by the CBRC, which is naturally lower than the trust law on the legal level; The "three chapters of the contract law" must be based on the trust law, and the content that conflicts with the trust law is invalid.
Second, the relationship between content division of labor
In terms of content and division of labor, Trust Law, as the basic law of domestic trust industry, plays an important role. "Three chapters and many regulations" have their own division of labor in different aspects of trust legal subject and relationship. Details are as follows:
( 1)? Trust law is the foundation of domestic trust industry.
The trust law establishes the basic rules of domestic trust, focusing on the establishment of trust, trust property, trust parties, change and termination of trust, public trust and so on, which is the "fundamental" to guide and supervise trust. The Trust Law has not been amended since it was passed in the National People's Congress Standing Committee (NPCSC) in 200 1, and there is no other new law to replace it. This is rare in China, where legislation has been revised frequently since 2 1 century. On the one hand, it shows that the legislative technology of trust law is at a high level, and on the other hand, NPC has formulated more principled legislation because of the principle that legislation should be coarse rather than fine. It is precisely because of this that there are "three chapters" and "multiple regulations" under "one law" for relatively detailed trust legal issues. Among them, the "three chapters", as efficient departmental regulations, are the main body of trust supervision and enrich the legal system of trust supervision; "Multi-regulation in one" is complicated and stipulates many regulatory details.
(2)? The Measures for the Administration of Trust Companies is the basis for the regulatory agencies and their actions.
The trust legal relationship under the trust law consists of the principal, the trustee and the beneficiary, and the trustee, as an institution in the trust industry, must be a trust company with a financial license and the word "trust" in its name, which is the key control object of the regulatory authorities. Therefore, the first provision of the "three regulations"-"Measures for the Administration of Trust Companies" regulates the acquisition and maintenance of trust company qualifications and the behavior of engaging in trust business, which is the direct supervision basis for the regulatory authorities.
(3)? The net capital law is the cornerstone of trust risk control.
"Investment is risky and you need to be cautious when entering the market". Investment risks, including financial risks, are not only affected by the market performance of investment products, but also by the macro environment, and even the latter is often more profound. Just as the global financial crisis in 2008 was invisible, it had an irresistible negative impact on the financial market. No matter what form the financial risk appears, it will eventually be realized as a loss of money, and as a licensed financial institution, capital is the last barrier to resist financial risks. The CBRC has strict regulations on the bank's capital adequacy ratio and other related indicators, and different capital performance states will lead the CBRC to adopt different regulatory measures. The same is true of trust companies supervised by CBRC. The "Measures for Net Capital" has made strict provisions on the net capital of trust companies. Note that this is not a common net asset, but "net capital", which is an important indicator to measure the risk control level of trust companies. The guarantee of net capital has established a relatively strong financial backing for the trust company.
(4)? The Trust Measures are the basis for the supervision of important trust products.
According to the number of clients, fund trust plans can be divided into single trust plans and trust plans. A single trust plan can be called "VIP tailor-made", which is exclusive to one customer. The mainstream product of most trust investors is the trust plan, that is, the trust plan set up for two or more customers. Due to the complexity and risk of involving more than two investors, the Trust Measures clearly regulate such trust products. It takes the life cycle of trust plan establishment-property custody-operation and risk control-change, termination and liquidation as the main line, and combines the trust plan documents, envelopes, beneficiary meetings and other related contents to specify the trust plan in detail, which has strong operability.
(5)? "Multiple supervision" provides detailed supplementary supervision details.
In addition to the above-mentioned "one law, three chapters and many regulations", other regulatory documents of the State Council (including the State Council General Office), China Banking Regulatory Commission, China Insurance Regulatory Commission and other regulatory agencies contain a large number of detailed and supplementary operating rules on trust supervision. According to the author's incomplete statistics, including the New Regulations on Asset Management jointly issued by four ministries and commissions in April this year, namely the Guiding Opinions of the People's Bank of China, the Insurance Regulatory Commission of the Bank of China, the China Securities Regulatory Commission and the State Administration of Foreign Exchange on Regulating the Asset Management Business of Financial Institutions, the document number is Yinfa [20 18] 106, with a total of more than 60 articles. Although these normative documents are not high in level, different in length and content, they have also become a part of China's trust supervision system. Because of their complexity in quantity and content, I will not analyze them one by one here. The regulatory details involved in subsequent articles will be mentioned.
To sum up, China's trust supervision system consists of the above-mentioned "one law, three chapters and multiple regulations". Although it is not perfect, especially the trust law is more general and the framework is more complicated, the current market situation can still maintain the supervision level of trust business. With the continuous improvement of China's legislation, especially financial legislation, I believe that the institutional level of China's trust law can be further improved in the foreseeable future.