With the development of the social and economic situation, the number of market players is increasing, financial products such as ** are rich and diverse, the people's material conditions are getting better and better, and the concept of financial management is becoming more and more popular. Due to the professionalism of the market, in order to avoid risks, some market entities choose to hand over their capital account names and passwords to others for investment management, and entrusted wealth management came into being.
Entrusted wealth management refers to the economic activities in which the trustor entrusts its funds, assets such as ** to the trustee, and the trustee invests the assets in the **, etc. trading market or manages through other financial forms, and the proceeds are distributed according to the agreement of both parties or the trustee collects the first fee.
In the course of hearing a private entrusted wealth management case, the court should first review the validity of the contract in accordance with the law, and then make a judgment on the rights and obligations of both parties on the basis of the validity of the contract. The review mainly focuses on the following aspects:
1.Review the subject qualifications of the client and trustee.
Generally speaking, natural persons and legal persons who have the qualifications of independent civil subjects in accordance with the law can sign private entrusted wealth management contracts as principals; If the trustee is a natural person, the trustee does not need to go through the concession approval, and if the trustee is a practitioner in the financial industry, it is necessary to review whether there is any violation of the prohibition on practice.
2.Identification and handling of minimum guarantee clauses in entrusted wealth management contracts.
The minimum guarantee clause refers to the clause that the principal will recover part or all of the investment principal or even perhaps the income regardless of the profit or loss of the entrusted wealth management, which is essentially a redistribution of the risk that the client should have borne himself. According to Articles 6 and 153 of the Civil Code of the People's Republic of China, it is generally determined that the minimum guarantee clause in the entrusted wealth management contract is invalid because it violates the principle of fairness and public order and good customs. The invalidity of the guarantee clause does not necessarily mean that the contract is invalid. According to article 156 of the Civil Code of the People's Republic of China, if a civil juristic act is partially invalid and does not affect the validity of the other parts, the other parts are still valid. Whether the contract is valid or not mainly depends on whether the minimum guarantee clause belongs to the purpose clause and core clause of the entrusted wealth management contract.
3.Responsibility in the entrusted wealth management contract.
Including the calculation and treatment of losses and income of entrusted assets, first of all, the scope of losses of entrusted assets should be limited to the actual loss, excluding the loss of available benefits. Secondly, the calculation method of the actual loss of the entrusted assets is as follows: the loss of the entrusted assets = (the entrusted assets actually delivered by the principal + the market value of the financial assets on the day) - (the entrusted assets on which the control is actually transferred back to the principal + the market value of the financial assets on the day). There are two ways to deal with the loss of entrusted assets: one is that when the contract is valid, according to its agreement, the trustee shall bear the liability for breach of contract if it defaults; Second, when the contract is invalid, the fault of both parties when the contract is invalid and the fault of both parties for the entrusted assets shall be examined.
* There are risks, you need to be cautious when entering the market, when entrusting others to manage money, you should fully assess the qualifications and ability of the trustee to manage money, make rational judgments, always pay attention to the changes in the funds in your account, once you find that the trustee is not professional financial behavior, you should communicate with the trustee in time to understand the situation, and take decisive measures to achieve the purpose of stop loss.