A Study On Securities Investment Fund Organization Shape

The securities investment fund’s organization shape had decided the securities investment fund all quarters litigant’s legal status and the rights and obligations relations, have one quietly vital role to protect fund investor’s benefit. At present the world securities investment fund industry mainly has two kinds of organization shapes:Corporation and Contract, the corporate fund already became the mainstream shape of the world securities investment funds industry development. However, our country securities investment fund legislation had actually chosen the contract to be the only organization shape. The mainstream viewpoint thought that our country should comply with the world current development to transplant corporate fund, but it has not been proved that corporate model is better than contractual model from the function angle. And it has not been researched deeply whether the corporate fund could comply with the present China legal framework after its transplant so that it was completely unable to prove the rationality and the feasibility of transplanting company fund. Firstly, this article is to clear the concept of securities investment fund organization shape as the foundation. Then it has studied the historical vicissitude of Securities investment Fund Organization shape in the major countries to grasp the developmental trend of the securities investment fund organization shape. The different organization shape’s legal structure has been studied in order to understand correctly the true difference between corporate fund and the contractual fund in the legal structure. By the functional analysis, the quality of the corporate fund and the contractual fund can be compared. Finally, it has been concluded that our country should transplant the corporate fund and retained the contractual fund. By the mutual competition and communal development, the choice will be made by the capital market.Besides the introductory remarks, this article is divided 5 chapters, carrying on the discussion from the different angle to the securities investment fund’s organization shape. The first chapter obtained from the introduction securities investment fund’s production and the development and recalled the development of securities investment fund in China. It has analyzed the function and significance of securities investment fund. Based on this, it has carried on the analysis to the securities investment fund organization shape concept and the type, and compared them with the related legal concepts. The correct understanding of the securities investment fund organization shape is the foundation of the research on the securities investment fund organization shape and the hypothesis logic beginning for the dissertation. Then this chapter also recalled the historical vicissitude of American, British and Japan’s securities investment fund organization shape through the historical analysis’s method to summarize the development trend of the securities investment fund organization shape in the most three important capital markets in the world, particularly analyzing the reason and effect of corporate fund transplant in British and Japan. Then proposed the developmental tendency of the current securities investment fund organization shape that the company fund becomes the mainstream shape and company fund and contract fund is in mutual competition and communal development in various countries capital market.The second chapter carries on the comparative analysis to the corporate fund and the contractual fund’s legal structure, thinking that the basic legal structure of two kinds of organization shapes of the securities investment fund may be one kind tripartite institutional arrangement including the adviser, the investor and the monitor. It proposed that the contractual fund’s legal structure has manifested the trust system and the corporate fund’s legal structure the company system and contract system’s union through the compare of securities investment fund organization shape in US, Japan and UK. Through comprehensive system’s comparison test research, it proposed the different system design between the corporate fund and the contractual fund in the system structure, in drives and on the restraint fund adviser. First, in the corporate fund’s legal structure the monitor is the system center. As the monitor, board of directors has the final responsibility regarding the fund operation and the management. The board of directors authorizes and supervises the fund supervisor’s investment decision, carries on the appraisal to the fund supervisor’s investment management effect. Meanwhile, in the contractual fund’s legal structure, the adviser is the system center who manages the start and movement. Even the monitor is chosen by the adviser. Second, the corporate fund establishes an independent monitor-the board of directors while the contractual fund chooses the trustee to be the non-independent monitor. Third, the investors of the corporate fund have wide vote rights while the range of the investors’vote rights of the contractual fund is limited.The third chapter compared the function quality between the corporate fund and the contractual fund through institutional analysis. The securities investment fund’s organization shape is one institution so that the function of the corporate fund and the contractual fund could be compared through the angle of institutional economics. Through transaction cost’s standard and empirical analysis, it proposed that the corporate fund is more effective. Through the drive functional analysis, it proposed that the corporate fund can drive the fund supervisor better. Through the restraint opportunism functional analysis, it proposed that the company fund can well alleviate the information non-symmetry, the conflicts of interest and the dependence between the fund investor and the fund advisors. Thus it proposed thai the company fund has the system superiority compared with the contract fund, providing the economic argument for the legislative choice.The fourth chapter chooses the developmental path for the institutional innovation of Chinese securities investment fund’s organization shape. Firstly, it launches the empirical analysis to the contractual fund in China specially analyzing the unique legal structure. It points out the existing institutional draws in the unique legal structure supervising and driving advisers and combs the practical damages caused by the institutional draws. Secondly, it was found that there are two special interest groups:small investors and fund Management Company. Small investors always are the fund investors and Fund Management Company is the fund adviser. The number of fund Management Company are few, obtaining the big benefit from the legislative choice, can thus form the consensus of opinion to affect the legislator. Therefore, the contractual fund with the low institutional efficiency that benefits the fund advisors became the final legislative choice.. Based on this, in order to meet the international financial competition, considering the institutional advantages and the resistance of special interest group, the institutional innovation should be the dual model:translate the corporate fund and remain the contractual fund. Let the two models compete in the capital market and get the mutual development.The fifth chapter put forward the perfect legislative proposal to translate the corporate fund. Firstly, it comprehensively analyzed the legal conflict between the corporate fund and the current Chinese law system. The capital of the corporate fund the corporate fund is in change condition which has the conflict with the capital invariable principle of. The governance structure of the corporate fund only sets up the board of directors meanwhile the present corporation law sets up Shareholder meeting, board of directors and board of supervisors. In the income tax collection, the present tax law’s stipulation will implement the dual taxations to the corporate fund, serious influencing the healthy development of the corporate fund after it transplanted. Secondly, the core factor influencing the practical effect of translating the corporate fund has been analyzed. According to the analysis, the most important problem influencing the practical effect of the corporate fund is to keep the independence and specialization of independent director. Finally, it made the reasonable legislative suggestion and perfect legal regime.