金融公司行政托管法律制度的完善——从公司控制权的角度分析

The Perfection of Financial Company Administrative Trusteeship Legal System:Analyzed from the Angle of Corporate Controlling Rights

行政托管是我国较有特色的一项处置高风险金融公司的制度,但目前该项制度存在法律依据不足、法律关系不明、法律责任不到位等弊端,从公司控制权的角度看托管人的权责应当匹配,建议将行政托管规定为一种行政处罚措施,分重组式托管与清算式托管进行不同规定,尤其要注意完善托管人义务与责任的相关法律规定,以保障金融市场的稳定与金融消费者的合法权益。

Administrative Trusteeship is a Chinese-characteristic system to dispose highly-risked financial companies.However,this system has several defections including insufficient legitimate basis, obscure legal relationship, inadequate legal liabilities, etc. Viewed from the angle of corporate controlling rights, the liability of the trustee should be matched with his power. Therefore, it is suggested to classify the administrative trusteeship as a kind of administrative sanction measure, while the reorganization trustee and the liquidation trustee should be regulated differently. Especially those legal provisions related to the liabilities and responsibilities of trustee should be paid more attentions to ensure the stability of financial market and legitimate interests of financial customers.