证券投资基金制度若干法律问题思考--兼评《证券投资基金法(草案)》

证券投资基金作为证券市场的主要投资力量和融资工具,在我国已有了初步的发展,但仍存在诸多问题。为了保证证券投资基金的健康稳定发展,2002年8月我国起草了《证券投资基金法(草案)》,该草案虽对证券投资基金的法律性质、基金当事人的法律关系以及基金内部治理结构和运作机制作出了较为明确的规范,但仍存有一些问题值得探讨。在信托制基金中,信托基金契约的立法模式应以简化、单纯、明确为宜,同时不妨采取董事会制度。由于信托制基金内部治理结构的自有缺陷性,证券投资基金在具体运作过程中对实现基金的目的,维护基金份额持有人的利益带来一定的障碍,总体考察,采取公司型基金模式为宜。

Consideration of the Legal Issues about the System of the Securities Investment Fund--Some comments on the draft of securities investment act

As the main source and a tool of funds for circulations in the securities market, the securities investment funds is of the initial stage of development. However, their exist some problems. In order to guarantee its healthy and stable development, securities investment act is drafted in our nation in August, 2002. The draft sets clear regulations of its legal nature, the legal relationship of its parties, internal administrative structure and its operating mechanism. However, there are still some problems that should be studied further. As for the trust funds, its legislative mode had better be simple, uniform and definite, and at the same time, the system of board of directors should be adopted. Due to the inherent defects, there are some barriers for the realization of its purpose and the upholding of the interests of its share-holders. Therefore, generally speaking, the mode of corporate funds is the best choice.