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 basic law 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, etc. It is the "fundamental law" guiding trust supervision. 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 Measures for Collective Trust is the regulatory basis for important trust products.
According to the number of clients, fund trust plans can be divided into single trust plans and collective trust plans. A single trust plan can be called "VIP tailor-made", which is exclusive to one customer, while the mainstream product for most trust investors is a collective trust plan, that is, a trust plan set up for two or more customers. Due to the complexity and risk of involving more than two investors, the Measures for Collective Trust clearly regulates such trust products. It takes the life cycle of collective trust plan as the main line, including establishment, property custody, operation and risk control, change, termination and liquidation, and combines the relevant contents of collective trust plan, such as document content, letter cover, beneficiary meeting, etc. , and has made detailed provisions on the collective trust plan, 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.