China: 医疗机构投资并购之法律尽职调查实务分析

Last Updated: 2 October 2019
Article by Jiang Fuchao, Deng Weifang and Kaiwen Zhong
Most Read Contributor in China, September 2019

2019年8月7日,最高院发布《全国法院民商事审判工作会议纪要(征求意见稿)》("《九民纪要(稿)》"),其中第93条对营业信托纠纷案件中"通道业务"的司法处置路径做出指引。

结合现行金融监管规定及目前司法案例来看,第93条对营业信托中通道业务及事务类信托的界定以及其效力认定的指引并非新创,是对现行监管态度及目前司法处置路径的总结与延续,而对于通道安排的效力的认定、受托人的责任范围认定等问题仍未给与明确的指引。

继《2019年全国法院民商事审判工作会议纪要研究系列之营业信托裁判规则解读、反思与建议》总则篇及上篇后,笔者团队结合对金融资管业务的知识梳理及在营业信托纠纷领域的法律服务经验,在本文中尝试对《九民纪要(稿)》第93条(即通道业务的效力认定和责任承担)进行解读、反思与建议,以期有共鸣者指点一二。

一、"通道业务"与"事务类信托"之再审视

《九民纪要(稿)》第93条前半段对"通道业务"及"事务类信托"予以界定,"当事人在信托文件中约定,委托人自主决定信托设立、信托财产运用对象、信托财产管理运用处分方式等事宜,自行承担信托风险,受托人仅提供必要的事务协助或服务,不承担信托财产管理职责的,应当认定为事务类信托或通道业务"。下文中,将分别对通道业务及事务类信托的内涵进行梳理、解读。

《九民纪要(稿)》第93条前半段对"通道业务"及"事务类信托"予以界定,"当事人在信托文件中约定,委托人自主决定信托设立、信托财产运用对象、信托财产管理运用处分方式等事宜,自行承担信托风险,受托人仅提供必要的事务协助或服务,不承担信托财产管理职责的,应当认定为事务类信托或通道业务"。下文中,将分别对通道业务及事务类信托的内涵进行梳理、解读。

1.通道业务

"通道业务"并非严谨的法律概念,一般是对资产管理业务中对受托机构不承担主动管理责任的工具性交易安排的统称,其在不同的资管产品中有不同的表现形式,如其最初于2008年以"银信合作"的形式出现,此后银证合作、银基合作等新型通道业务不断发展。随着各类资产管理业务中通道业务的壮大,监管部门也颁布了一系列的法规政策,对其中通道业务的内涵进行梳理,总结如下:

结合上述文件对通道业务的表述,可以认为通道业务是指"由委托方 (或第三人)确定资金和资产,履行主动管理职责、承担投资风险,受托方(即通道方)按照委托方的投资指令开展业务,不承担主动管理责任,通过合同约定原状返还等条款不承担投资风险的各类业务" 1,无论"通道业务"的表现形式如何,其核心特征之一都是委托方与受托通道机构约定通道机构在具体金融产品和业务中不承担积极、主动管理职责,并且相关风险由委托方承担。 2

2.事务类信托

于信托业,在我国金融领域分业经营、分业监管的模式下,因信托具有可以横跨资本市场、货币市场进行资产管理交易的制度优势,被商业银行或其他金融机构作为规避监管政策进行投资的载体,由此衍生出大量的信托通道业务。提供"通道业务"的信托,一般称为通道类信托、事务类信托或被动管理类信托等,在学理上通常被归属为被动信托或消极信托 3

关于事务类信托的内涵,笔者尝试性对我国现行法律法规中通道业务的内涵进行梳理与总结如下:

footnotes

1 万子芊.对资管新规关于通道业务相关规定的理解与思考[J].金融法苑,2018(02):101-115.

2 李彧.论通道类信托中受托人的职责[J].北华大学学报(社会科学版),2016,17(04):72-76.

3 赵廉慧.信托法解释论[M].北京:中国法制出版社.2015. 307

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