投资基金立法中的若干争议问题研究

The Research of Some Disputed Questions about the Investment Fund Legislation

探讨投资基金的立法定义 ,主张按照商法的性格拟定《投资基金法》 ,妥善处理《投资基金法》与其他相邻商事立法的关系。同时探讨了投资基金管理人、托管人和发起人的资格及规制。保护投资者权益应当成为投资基金立法的最高立法宗旨。因此 ,应当加强对投资者权利的立法保护力度 ,建议设立投资者协会。立法应理顺投资基金法调整的行政关系 ,规范投资基金监管部门的行政行为。为在投资公司和投资基金管理公司建立健全独立董事制度 ,必须强化独立董事的资格确保机制、利益激励机制、责任追究机制和集体规模优势。另外 ,为顺应入世潮流 ,应依法鼓励外国资本进入中国投资基金市场。

This article first points out the necessity and significance of drafting the Law of Investment Fund, and then proceeds to discuss the legislative definition of investment funds. This article argues that the Law of Investment Fund should be formulated based on its feature as a branch of business law, and that the relationship between this Law and other neighboring laws should be dealt with in a proper way. This article pays great attention to the qualifications and regulations of the fund managers, custodians and promoters. The author argues that the supreme rationale of the investment fund legislation is to protect the fund investors, and that such rationale should be achieved by strengthening the rights of investors, including establishing the associations of investors. The author also argues that the investment fund regulatory authorities should be regulated from the administrative law perspective. Regarding the introduction of independent directors to the investment corporations and investment fund management corporations, the clear definition of qualification, motivation and obligation and scale advantage of independent directors mechanism. Lastly, the article also argues that foreign investors should be encouraged to enter Chinese investment fund market.