金融复合型产品的定性与监管转型:美国变额年金的借鉴与启示

The Legal Nature and Regulation Change of the Financial Complex Products:Lessons and Inspirations from the US Variable Annuity

我国金融复合型产品监管政出多门,要求不一,并存有明显的适法错位和缺位情形。美国法对变额年金的定性及监管争议,各州、SEC立场分明:应确为保险,由州法监管;或以“投资”重要性程度定为证券,由SEC监管。美国联邦法院通过VALIC等案,依“投资风险承担”的主导性因素,判定该产品为证券,引向证券法规范方向,且形成共同监管及其各有规范侧重的格局。为强化投资权益保护,美国法对复合型产品监管不断修正,已由法律形式之争转向了实质规范进路。我国法对金融复合型产品监管,不应囿于法律属性的形式归类,而应遵循实质规范思路。时下兴起的穿透式监管是功能监管在我国金融领域一种探索性的实践方法或手段,不能为证监会依证券法对金融复合型产品跨业监管提供应然性基础,或未能为银保监会依证券法对投连险等产品监管提供合理性依据。监管转型上,仍应以功能监管为导向,并有赖于银保监会、证监会等机构协作;现有“联席机制”等“软法”倡导性机制应转向基本法“硬法”层面的“协作制度”,正视产品证券属性及其信息披露,以此实现投资者权益保护目标。

For financial complex products in China,there are divided policies from various sources,each with different requirements and also obviously,there exists such circumstance where the law is applied wrongly or lack of law application.In terms of the legal nature of the variable annuity as defined by the US law and the disputes over its regulation,the stances taken by all states and SEC are clear and distinctive–either it is identified as insurance and regulated by the state law or defined as securities and regulated by SEC based on its level of importance as an“investment”.US Federal Court has passed a number of cases represented by the VALIC case.The product is determined to be securities based on the dominant factors of“investment risk taking”,thus the direction is led to the regulation by Securities Law and a pattern featuring co-regulation with particular emphasis from each regulation is also formed.To strengthen the protection of investment interests,the regulation of complex product by the US law is being amended constantly,and the disputes over the legal form is replaced by the substantial regulation approach.The regulation of the financial complex product by laws of China should not be limited to the outward classification of legal nature,but to follow the substantial regulation approach.The current prevalence of penetrative regulation is an exploratory practice method or means of functional supervision in the financial field of China,hence it may not provide the necessary basis for the cross-industry regulation of complex products by China Securities Regulatory Commission(the“CSRC”)in accordance with the Securities Law or provide any reasonable basis for the regulation of such products as the unit-linked insurance by China Banking and Insurance Regulatory Commission(the“CBIRC”)in accordance with the Securities Law.In terms of the supervision transformation,still we should follow the direction of functional supervision and rely on the agency collaboration among CBIRC,CSRC,etc.The existing“advocacy mechanism”at“soft law”level represented by the joint mechanism should be changed to the“collaboration system”at“hard law”level represented by the basic law.In addition,the securities attributes of the product and the related information disclosure should be faced up in order to realize the goal of protecting the rights and interests of the investors.