First, the legal relationship between securities companies and brokers
The Interim Provisions clearly defines the legal relationship between securities brokers and securities companies: "A securities broker refers to a natural person other than a securities company entrusted by a securities company to engage in activities such as soliciting customers and customer service."
This definition has three meanings. First, the legal relationship between securities companies and securities brokers is principal-agent relationship. Securities brokers shall carry out activities such as customer solicitation and customer service within the scope authorized by securities companies. Securities companies shall bear corresponding legal responsibilities for acts within the scope of authorization, and securities brokers shall bear corresponding legal responsibilities for acts beyond the scope of authorization. Second, securities brokers are natural persons and cannot be institutions or groups; Third, securities brokers can only be agents of securities companies, not employees or intermediaries. Securities companies entrust natural persons other than the company to engage in customer solicitation, customer service and other activities, only in the form of securities brokers, not intermediaries and other forms.
Two, the provisions of the securities broker's practice conditions.
According to the Interim Provisions, securities brokers need to meet four conditions before they can practice. First, they must have the qualifications of securities practitioners, and have the same qualifications as ordinary securities practitioners, that is, they must meet the conditions stipulated in Items (2) to (6) of Article 10 of the Measures for the Administration of Securities Practitioners' Qualifications; Second, it is necessary to register with China Securities Association through securities companies; The third is to obtain the securities broker certificate issued by the securities company; The fourth requirement is that securities brokers can only accept the entrustment of securities companies and should engage in activities such as customer solicitation and customer service on behalf of securities companies.
Three, the provisions of the securities broker's practice norms.
The behaviors that securities brokers can engage in and the behaviors that are prohibited are clarified.
Article 11 of the Interim Provisions stipulates that securities brokers may engage in some or all of the following activities according to the authorization of securities companies during their practice:
(a) to introduce the basic situation of securities companies and securities markets to customers;
(two) to introduce the basic knowledge of securities investment and business processes such as account opening, trading and fund access to customers;
(3) Introduce the laws, administrative regulations, regulations of China Securities Regulatory Commission, self-discipline rules and relevant regulations of securities companies related to securities trading to customers.
(4) transmitting research reports and information related to securities investment uniformly provided by securities companies to customers;
(5) transmitting the promotional materials and related information of securities and financial products uniformly provided by securities companies to customers;
(6) Other activities that securities brokers can engage in as stipulated by laws, administrative regulations and the China Securities Regulatory Commission.
The above provisions strictly limit the scope of practice of securities brokers, and the role of securities brokers is only "introduction" and "transmission". The reason why the practice scope of securities brokers is so strictly restricted is because according to the explanation of the relevant person in charge of the CSRC, the securities broker system in China has just started, and the management ability of securities companies and the overall quality of brokers are not high, so brokers can't act as agents for more business activities for the time being, otherwise a lot of disputes will easily occur and the overall image of brokers will be damaged. At the same time, the first paragraph (6) of this article sets general terms for securities brokers to engage in other activities, and also reserves space for securities companies to classify securities brokers.
Article 13 of the Interim Provisions stipulates that securities brokers shall practice within the scope specified in Article 11 of these Provisions and the scope authorized by securities companies, and shall not commit any of the following acts:
(1) Handling account opening, account cancellation, transfer, securities subscription, trading or fund access, transfer and inquiry for customers;
(2) Providing or disseminating false or misleading information to clients, or inducing clients to buy or sell securities unnecessarily.
(3) Agreeing with customers to share the investment income, and making a commitment to the compensation for the customer's securities trading income or securities trading loss.
(four) to attract customers by improper means such as belittling competitors and entering the business premises of competitors;
(5) divulging the business secrets or personal privacy of customers;
(six) to provide intermediary, guarantee or other convenience for financing between customers;
(seven) to provide illegal service places or convenient transactions for customers, or to engage in customer solicitation and customer service activities through the Internet and news media;
(eight) entrust others to engage in customer recruitment, customer service and other activities;
(nine) other acts that damage the legitimate rights and interests of customers or disrupt the market order.
Most of the above provisions are professional norms that general securities practitioners should prohibit, and two of them are relatively new: first, they are not allowed to engage in activities such as customer solicitation and customer service through the Internet and news media; Second, it is not allowed to entrust others to engage in activities such as attracting customers and customer service;
Four, made specific provisions on the entrustment contract.
The signing, main contents and termination of the entrustment contract are specified in detail.
(a) the examination of the qualifications of securities brokers before the signing of the entrustment contract
Article 5 of the Interim Provisions stipulates that a securities company shall strictly examine its qualifications before signing an entrustment contract with a securities broker. A securities company may not sign an entrustment contract with a person who does not meet the prescribed conditions;
(2) The main contents of the entrustment contract
Article 6 of the Interim Provisions stipulates that when a securities company signs an entrustment contract with a securities broker, it shall follow the principles of equality, voluntariness, honesty and credibility, and fairly determine the rights and obligations of both parties.
The entrustment contract shall specify the following items:
1, name of securities company and name of securities broker;
2. The agency authority of the securities broker;
3. The agency period of the securities broker;
4. The securities business department served by securities brokers;
5, the scope of practice of securities brokers;
6, the basic code of conduct of securities brokers;
7. Calculation and payment methods of securities brokers' remuneration;
8. Rights and obligations of both parties;
9. Liability for breach of contract.
The geographical scope of securities brokers' practice should be adapted to the management ability of the securities companies they serve, the customer management level of the securities business department and the reasonable area of customer service.
What needs to be focused on is that the Interim Provisions require that the scope of practice of securities brokers be stipulated in the entrustment contract. Although the scope of practice of securities firms is not clearly defined in the Interim Provisions, securities companies can agree on the scope of practice with securities firms according to their own management ability and customer service level.
Fifth, focus on the management responsibility of securities companies.
The Interim Provisions stipulate that the management responsibilities of securities companies mainly include:
Training management
Article 7 of the Interim Provisions stipulates that securities companies shall provide securities brokers with no less than 60 hours of pre-practice training, including no less than 20 hours of training in laws, regulations and professional ethics. Securities companies should test the effect of pre-job training for securities brokers.
Article 14 of the Interim Provisions stipulates that securities companies shall organize follow-up vocational training for securities brokers in accordance with the provisions of the Association.
(2) Practice registration and broker certificate management.
1, practice registration
Paragraph 1 of Article 8 of the Interim Provisions stipulates that a securities company shall register with the China Securities Association (hereinafter referred to as the Association) after signing an entrustment contract with a securities broker, conducting pre-practice training and passing the examination. Practice registration items include the name of the securities broker, ID number, agency authority, agency term, securities business department, practice area and company inquiry and complaint telephone number, etc.
2. Certificate management
Paragraph 2 of Article 8 of the Interim Provisions stipulates that after a securities company has registered as a securities broker, it shall print a certificate of securities broker in accordance with the regulations of the Association, affix the official seal of the company and issue it to the securities broker. Securities broker certificates shall be uniformly printed and numbered by the Association.
Article 9 of the Interim Provisions stipulates that if the matters specified in the certificate of securities broker change, the securities company shall withdraw the certificate, handle the change of personnel's practice registration with the association, and handle the printing and issuance of new certificates in accordance with the provisions of the second paragraph of Article 8 of these Provisions.
Where a securities company terminates the entrustment relationship with a securities broker, it shall, within 5 working days from the date of termination of the entrustment relationship, withdraw its securities broker certificate and cancel its practice registration. If a securities company fails to withdraw the certificate of securities broker for some reason, it shall announce that the certificate is invalid through newspapers, company websites and other media designated by the China Securities Regulatory Commission within 10 working days from the date of termination of the entrustment relationship.
(3) Establish and improve the customer complaint and dispute handling mechanism.
Article 19 of the Interim Provisions stipulates that securities companies shall establish and improve the mechanism for handling customer complaints and disputes, clarify the handling procedures, properly handle customer complaints and disputes with customers, and continue to do a good job in handling customer complaints and disputes. A securities company shall ensure that there are specialized personnel to accept customer complaints and receive customers' visits during business hours. The customer complaint channels and dispute handling procedures of a securities company shall be publicized on the company website and the business place of the securities business department.
As an important index to measure the internal management ability and customer service level of securities companies, the situation of securities brokers being complained and the prevention and treatment effect of securities companies on customer complaints, disputes and unstable events are included in their classified evaluation scope.
(4) File management
Article 22 of the Interim Provisions stipulates that securities companies should establish and improve the files of securities brokers in order to leave traces in the practice of securities brokers. The archives of securities brokers shall record the basic personal information of securities brokers, the qualification status of securities practitioners, the agency authority, the agency term, the securities business department served, the scope of the practice area, the pre-practice and follow-up vocational training, the practice activities, the handling of customer complaints, the handling of violations of laws and regulations and behaviors beyond the agency authority, and the performance appraisal.
(5) annual reporting system
Article 22 of the Interim Provisions stipulates that a securities company shall submit an annual report on the management of securities brokers to the local CSRC agency before June 65438+1October 3 1 every year. The annual report shall at least include the following contents:
1, the operation and improvement of the relevant management system, internal control mechanism and technical system of securities brokers this year;
2 changes in the number of securities brokers this year, the number of securities brokers at the end of the reporting period and their distribution in the securities business department;
3. The implementation of the entrustment contract of securities brokers, the payment of securities brokers' remuneration and the protection of legitimate rights and interests this year;
4. The contents, methods, time, number of trainees and the training plan for the next year of the pre-practice training and follow-up vocational training for securities brokers this year;
5 customer complaints and disputes related to securities brokers this year and their handling, matters that may cause centralized complaints at present, reasons and proposed solutions.
In addition, the Interim Provisions also require that securities companies should include the practice of securities brokers in the scope of corporate compliance management, establish a scientific and reasonable performance appraisal system for securities brokers, and include the compliance of securities brokers' practice in their performance appraisal scope. A securities company shall include the effectiveness of the securities business department in managing securities brokers in the scope of performance appraisal. A securities company shall establish and improve a securities broker's practice support system, an information inquiry system, an abnormal trading and operation monitoring system, and a customer return visit system to provide convenience for brokers' practice and supervise their practice.
6. Arrangements have been made for the implementation of the broker system.
Article 26 of the Interim Provisions stipulates that a securities company shall report the relevant management system of securities brokers and the implementation plan for starting the securities broker system to the dispatched office of the CSRC at the company's domicile for the record. After on-site inspection by the dispatched office of the local CSRC, it is confirmed that the relevant management system, internal control mechanism and technical system have been established and can operate effectively, the implementation plan of the securities broker system is reasonable and feasible, and the securities brokerage business meets the compliance requirements, the securities company may entrust securities brokers to engage in activities such as customer solicitation and customer service.
Before the securities business department begins to implement the securities broker system, it shall report the management system related to securities brokers and the implementation plan for starting the securities broker system to the local dispatched office of China Securities Regulatory Commission for the record, and accept the supervision of the local dispatched office of China Securities Regulatory Commission.
According to the above provisions, a securities company implementing the broker system should do a good job in two aspects: first, the securities company should report the management system and implementation plan related to brokers to the local securities regulatory bureau for the record, and only after the on-site inspection and approval by the securities regulatory bureau can the securities company entrust brokers to carry out exhibition industry; Second, the business department should also report the company's management system and implementation plan related to brokers to the local securities regulatory bureau for the record and accept the supervision of the securities regulatory bureau.