资产收益权视角下资管交易的穿透式规范

The Look-through Governance of Asset Management Transactions from the Perspective of Asset Beneficial Rights

资产收益权是我国各类资管交易的私法基础和交易客体,其在促成交易的同时也便利了监管套利。资产收益权类型多样、内容繁杂,超出了民法相关概念的承载范围,是金融创新的结果,但亦因此导致私法基础存疑。资产收益权的债权性质便利了交易,但导致了高杠杆经营和多层嵌套,诱发了资管市场的系统性风险。对资产收益权交易法律性质的判断在监管和裁判上均可遵循“实质大于形式”的原则,并根据其风险特征,判断其法律效力。对处于金融监管与司法裁判夹缝中的资管交易法律效力的判断,应遵循司法谦抑原则,原则上应当尊重当事人的约定,而对影响金融稳定的交易应否定其效力,但需对特定资管交易如何影响金融稳定予以论证阐释,把握好市场自治和国家司法干预的平衡。穿透式监管有效抑制了监管套利的金融创新,也为穿透式裁判提供了坚实的制度保障。金融监管和司法裁判应当积极协同,实现对资管市场的有效监管,维护金融稳定和安全。

The asset beneficial rights are the private law foundation and transaction object through which the transactions of asset management are undertook in China, meanwhile it also facilitates implementation of the transaction and the regulatory arbitrage. As the result of financial innovation, the types of asset beneficial rights are diversified and the content is complex, which is already out of the existing range of related concepts in the civil law system, and thus leads to doubts about its private law foundation. The nature of asset returns rights, as a pecuniary obligation, facilitates the implementation of asset management transactions, but it also leads to high leverage and multiple levels of nesting, and consequently induces systemic risks into the market.The re-characterization of the nature of asset management transactions involving asset beneficial rights shall follow the principle of “substance over form” in supervision and adjudication, and its legal effect shall be determined according to its risk characteristics to the financial market. Judgment on the legal effectiveness of asset management transactions in the gap between financial supervision and judicial rulings, should follow the principle of judicial deference, namely the parties’ autonomy should in principle be respected, while they should be negated for transactions that affect the financial market stability, and it is necessary to explain how the specific asset management transactions affect financial stability, and grasp the balance between market autonomy and national judicial intervention. “Look-through” effectively inhibits the financial innovation for the purpose of regulatory arbitrage, and also provides a solid institutional guarantee for the “Look-through”judgment. Financial supervision and judicial adjudication shall actively cooperate to achieve effective supervision of asset management market, and maintain the financial stability and security.