Basic knowledge of Shaanxi Guotou Trust

The so-called Trust (English is "trust"), "trust" means trust, loyalty and reliability, and "trust" means entrustment and entrustment. The words "trust" and "entrustment" together have the meanings of "trust and entrustment" and "trust and entrustment". "Faith" is the premise of "faith". Only by knowing the other party's situation and believing that the other party is honest and reliable and entrusted conditionally can trust be possible. This is the general meaning of trust.

2 the legal meaning of trust

According to the Trust Law of People's Republic of China (PRC), trust refers to the act that the trustor entrusts the property right to the trustee based on his trust in the trustee, and the trustee manages or disposes in his own name for the benefit of the beneficiary or for a specific purpose according to the wishes of the trustor. In short, trust is an institutional arrangement for managing property for the benefit of others or for a specific purpose, that is, "entrusted by others to manage money on their behalf".

Using the trust principle, when a person (the client) is unable or unwilling to manage the property personally, he can transfer the property rights to someone he trusts who has the ability to manage the property (the trustee) and instruct the trustee to use the trust property and its income for himself or a third person (the beneficiary).

3 the difference between trust, entrustment and agency

As a unique legal design of property transfer and property management, trust is very different from entrustment and agency. In short, this difference is manifested in the following aspects:

First, the conditions for establishment are different. To set up a trust, you must have certain trust property. If there is no legally owned property to set up a trust, the trust relationship cannot be established. However, the principal-agent relationship is not necessarily based on the existence of property.

Second, the names are different. In the trust relationship, the trustee acts in his own name, while in the general principal-agent relationship, the trustee (or agent) acts in the name of the principal (or principal).

Third, the nature of property is different. In the trust relationship, the trust property is independent of the trustee's own property and other properties of the principal. Generally, the trustor, trustee or creditor of the beneficiary may not claim rights on the trust property. However, in the principal-agent relationship, the creditor of the principal (or the principal) can claim the rights of the entrusted property.

4 institutional advantages of trust

Compared with similar legal systems, trust is a more effective system design for property transfer and management, and its advantages are mainly manifested in the following three aspects:

First, the trust system is conducive to long-term planning. The existence of trust is consistent Trust will not be terminated due to the death, dissolution, bankruptcy, resignation, dismissal or other circumstances of the trustee, which is stable and long-term, and is more suitable for long-term planning of property transfer and property management.

Second, the trust system is more flexible. This is manifested in the following aspects: (1) The ways of trust establishment are diversified, such as trust contracts, other written forms, wills, etc. (2) Diversification of trust property. Anything with monetary value, whether movable or immovable, real right or creditor's right, tangible or intangible, can be used as trust property to set up a trust. (3) Liberalization of trust purpose. As long as it does not violate the mandatory provisions of the law and public order, the trustor may set up a trust for various purposes. (4) Trust has a wide range of applications, and there are many types of trusts.

Third, the interests of beneficiaries can be effectively protected. On the one hand, the ownership of trust property is separated from the beneficial right. Legally speaking, the trust property does not belong to the client or beneficiary, but is placed in the name of the trustee. According to the law and trust documents, the trustee enjoys the property right of the trust property and has the right to manage, use and dispose of the trust property in his own name. The trustor and the beneficiary have no right to manage and dispose of the trust property, but the benefits generated by the trust shall be enjoyed by the beneficiary. On the other hand, the trust property is independent, which protects the trust property from recourse by the creditors of the principal or the trustee, thus giving the beneficiary priority over the creditors of the principal or the trustee.

5 independence of trust property

According to the trust law, the property acquired by the trustee because of his commitment to trust is trust property. In addition, the property acquired by the trustee due to the management, use, disposal or other circumstances of the trust property also belongs to the trust property. However, the property prohibited from circulation by laws and administrative regulations shall not be used as trust property. Property whose circulation is restricted by laws and administrative regulations can only be used as trust property after it is approved by the relevant competent department according to law.

The independence of trust property includes the following four points:

First of all, the trust property is different from other properties that the client has not set up a trust. After the establishment of the trust, the trustor dies or is dissolved, revoked or declared bankrupt according to law, and the trustor is the sole beneficiary, the trust is terminated and the trust property is taken as its inheritance or liquidation property; If the trustor is not the only beneficiary, other beneficiaries still exist when the trustor dies or is dissolved, revoked or declared bankrupt according to law, and the trust property as a whole cannot be regarded as the trustor's legacy or liquidation property, only the trustor's trust beneficial right can be regarded as his legacy or liquidation property.

Second, the trust property is different from the property owned by the trustee. Trust property and inherent property belonging to the trustee

The difference shall not be attributed to or become part of the trustee's inherent property. If the trustee dies or is dissolved, revoked or declared bankrupt, the trust property does not belong to his estate or liquidation property. In other words, the trust property is not inheritable to the trustee and will not be listed as his legacy when he dies; When the trustee goes bankrupt, it shall not be listed as his liquidation property.

Third, restrictions on the execution of trust property. The Trust Law stipulates that the trust property shall not be enforced except for one of the following circumstances: (1) Before the establishment of the trust, the creditors have enjoyed the priority right to compensation for the trust property and exercised this right according to law; (2) The trustee handles the debts generated by the trust company, and the creditors demand to pay off the debts; (3) Taxes payable by the trust property itself. (4) Other circumstances prescribed by law. That is to say, in general, because the trust property is separated from the trustee's inherent property, once a trust is established, the property set by the trust is "self-enclosed", and neither the creditors of the trustee's inherent property nor the creditors of other trust properties managed by the trustee can apply for compulsory execution of the trust property.

Fourth, the limitation of trust property offset. The creditor's rights arising from the trustee's management, use and disposal of the trust property shall not be offset against the debts arising from its inherent property. Creditor's rights and debts arising from the trustee's management, use and disposal of trust property of different clients shall not offset each other. This legal provision aims to protect the trust property from the trustee.

6 independence of the use of trust property

The independence of trust property is the biggest feature of trust system, and it is also the key to the wide application of trust system. Trust can use the independence of trust property to provide very effective services for enterprises. The application of trust system in asset securitization is a typical example.

Asset securitization is to reorganize the risks and benefits of assets held by financial institutions or other enterprises that lack liquidity but can generate predictable and stable cash flow through certain structural arrangements, and create securities that can be sold and circulated in the financial market with the original assets as the guarantee.

In the process of asset securitization, there must be a special purpose vehicle (SPV) to implement asset securitization. Setting up SPV in the form of trust can make full use of the independent characteristics of trust property and protect securitization assets. The original owner of securitized assets can transfer the assets that are the subject of securitization as SPV to a trust company, set up a trust, and then issue securities through the trust.

This trust arrangement establishes a firewall between the original owner of securitized assets, SPV and investors. The securitized assets transferred by the original owner to SPV become independent trust property, which is nominally owned by SPV, and the original owner's business risks will not damage the trust property. When the original creditor goes bankrupt, his creditors have no recourse to the trust property. The bankruptcy risk of the original owner of securitization assets is effectively separated from securitization transactions. In the process of asset securitization, trust property is also different from the inherent property of SPV. When a special purpose institution is dissolved, revoked or declared bankrupt or terminated according to law, the trust property does not belong to its liquidation property. Once SPV goes bankrupt, its creditors have no recourse to the trust property.

With the continuous development and improvement of China's market economic system and financial market, the relevant systems in law, taxation, accounting and foreign exchange management required for asset securitization will be gradually established. It can be predicted that trust and investment companies will play an increasingly important role in China's asset securitization market.

7 The origin and development of trust

Modern trust originated from the eustace system in Britain in the13rd century, and has a history of more than 800 years. In medieval England, property transfer was restricted by law, and people used trust to avoid this legal restriction. Therefore, the trust did not have the function of property management at first. With the development of social economy, the restrictions on property transfer are gradually lifted, and the main function of trust has also changed from the earliest wealth transfer to modern professional property management.

Since the end of 19, trust institutions have flourished in the United States as a for-profit organization. At the beginning of the 20th century, after Japan introduced the trust system in Europe and America, it actively innovated, and the trust industry led by trust banks developed rapidly, and now it has become one of the developed countries in the trust industry.

With the development of trust system, the commercialization trend of trust tools is becoming more and more obvious. Modern trust activities are dominated by various profit-oriented trust institutions. In the United States, commercial banks mainly have professional trust companies and trust departments; Trust institutions in Japan are trust banks mainly engaged in trust business and banking business; Other countries also have such trust institutions leading modern trust activities.

Modern trust shows the trend of financialization. Trust activity is becoming a financial activity, and the nature of trust business is becoming more and more obvious, which can be attributed to the following two reasons. First, the increasing financialization of wealth. In the early days of trust development, the property used for trust was mainly land, and later some movable property appeared. With the continuous monetization of the economy, wealth has also begun to be financialized. With the entrusted property becoming more and more financial, the whole trust activity is also becoming more and more financial. The second reason is the financialization of property management. The early property management mode was more of the nature of custody and disposal. Modern financial management is mainly realized through financial tools. Nowadays, trust institutions are generally financial institutions, which together with banks, securities and insurance constitute one of the four pillars of modern financial industry.

Trust business in developed countries can be divided into individual trust, legal person trust and individual legal person-cum-trust. Personal trust includes personal management, property custody, will execution, estate management, financial consultation, financial agency and other trust businesses. Corporate trust mainly includes the entrustment business of issuing corporate bonds, the entrustment business of operating and managing trusts, the business of proxy stock transfer registration and dividend distribution, and the business of providing enterprise merger, reorganization and liquidation services. The trusts owned by both individuals and legal persons mainly include charitable trust, annuity trust and employee stock ownership trust.

8. The history and present situation of trust industry in China.

The development of trust industry in China can be traced back to the early 20th century. 19 18 Zhejiang industrial bank opens trust-based safe deposit box leasing business; 1965438+ Trust Department established by Shanghai Branch of Juxingcheng Bank in 2009; 1922 Shanghai commercial savings bank changed the custody department into the trust department and started personal trust deposit business. These are the first three financial institutions in China to operate trust business, marking the beginning of modern trust industry in China. After the founding of New China, due to the disappearance of the objective conditions of trust under the planned economy system, all trust businesses were closed in the mid-1950s. 1979 marks the establishment of China international trust and investment company and the restoration of trust industry in China. Since the establishment of 1979 China International Trust and Investment Company, the trust industry has made great contributions to China's economic construction in the development process of more than 20 years. However, due to various reasons, the development of China's trust industry has experienced many twists and turns and adjustments.

The first reorganization of trust industry in China took place on 1982. At that time, the scale of infrastructure investment was too large, especially in the form of trust loans. In order to strengthen the management of trust and investment business and improve infrastructure investment behavior, the People's Bank of China decided to rectify the trust industry.

The second rectification was carried out on 1985. The reason is that before 1984, a large number of credit activities were conducted by trust, but the source of trust funds was unknown, which easily led to the excessive growth of financial credit and out of control. Therefore, the People's Bank of China issued the Interim Provisions on the Administration of Financial Trust and Investment Institutions, which clarified the sources of trust funds.

The third rectification took place at 1988. Prior to this, the number of trust and investment companies expanded rapidly, and the phenomenon of "three chaos" (disorderly fund-raising and lending) was serious. The State Council decided to rectify the financial environment.

The fourth rectification was made in 1995, mainly because the trust company had irregularities such as high interest rate and deposit. The main event was that "Zhongnongxin" was closed on 1994 and "Zhongnongxin" was taken over by GDB. This rectification has contributed to the decoupling of the four major state-owned banks from the trust.

The last rectification took place in 1999. 1in March, 1999, the State Council announced the launch of the fifth reorganization of the trust industry in China, with the principle of "trust first, separate operation, scale operation and classified disposal".

The fifth rectification of Guangdong SDIC bankruptcy case from 1998 is considered as a fundamental change in the trust industry. In this clean-up and rectification, the Trust Law, the Measures for the Administration of Trust and Investment Companies and the Interim Measures for the Administration of Fund Trust Business of Trust and Investment Companies have been promulgated and implemented one after another. With the attitude of "resolutely turning the trust into a real trust and not letting the problematic companies stay", the regulatory authorities cancelled many small insolvent companies, and only about 60 of the existing 239 trust companies will be approved for re-registration.

With the fifth reorganization of trust and investment companies and the promulgation of "one law and two regulations", most trust institutions have made major adjustments in the ownership structure, enterprise model, internal control mechanism and management system according to the requirements of modern enterprise management and market-oriented standards, and some trust and investment companies with advanced concepts and flexible mechanisms have begun to make overall arrangements for their development strategies.

According to the Administrative Measures for Trust and Investment Companies, trust companies are the only financial institutions that can involve capital market, money market and industrial market at the same time. On July 18, 2002, Shanghai Aijian Trust and Investment Company launched the first standardized trust product in China-Shanghai Outer Ring Tunnel Project Fund Trust Plan. In September, Beijing International Trust and Investment Co., Ltd. launched the first trust variety in Beijing-CBD Central Business District Trust, and successfully sold it. Since then, various trust products have sprung up, from infrastructure construction to management buyout, from tunnel engineering to real estate development, from housing mortgage to automobile mortgage, from foreign exchange trust to financial leasing, and trust products are playing an active role in various fields.

9 business orientation of trust and investment companies

Before 1998, China's trust and investment companies were actually mixed financial institutions with banking as the core and engaged in securities business and industrial investment business at the same time. Since 1998, the state has greatly adjusted and repositioned the trust industry. After the promulgation of "one law and two regulations", the positioning of trust industry has been clear, and asset management business, some investment banking business and self-operated business have become the three core businesses of re-registered trust and investment companies.

The first core business is asset management business. According to the regulations, trust and investment companies can operate asset management business through entrustment and trust. (1) Manage assets by trust. Trust and investment companies can be entrusted to handle the trust business of funds, movable property, real estate and other property, that is, the trustor entrusts the trust and investment company to manage, use and dispose of the funds, movable property, real estate and intellectual property legally owned by it according to the agreed conditions and purposes. In addition, charitable trust is also one of the asset management businesses that trust and investment companies can carry out. (2) Managing assets by principal-agent method. According to the regulations, trust and investment companies can manage, use and dispose of property as agents; You can also run a custody business.

The second core business is part of the investment banking business. Investment banking in a broad sense includes securities underwriting and proprietary trading, corporate financing, corporate mergers and acquisitions, investment consulting, fund management and venture capital management. According to the regulations, trust and investment companies cannot engage in other traditional brokerage businesses except underwriting government bonds, policy bank bonds and corporate bonds. Trust companies can't directly intervene in Public Offering of Fund, only indirectly intervene in Public Offering of Fund business by initiating the establishment of funds or fund management companies, but can directly operate private equity fund business. In addition, trust and investment companies can engage in intelligence-intensive investment banking such as enterprise asset restructuring, mergers and acquisitions, project financing, enterprise wealth management, and financial consultants.

The third core business is self-operated business. Funds that can be used according to regulations under the owners' equity of trust and investment companies can be deposited in banks, and can also be used for interbank borrowing, loans, financial leasing and investment. Trust and investment companies can provide guarantees for others with inherent property; With the approval of the People's Bank of China, interbank borrowing can be handled.

In addition to the above three core businesses, trust and investment companies can also operate intermediary businesses including credit witness, credit investigation and economic consultation.

10 collective fund trust plan

"Collective Fund Trust Plan" is a trust investment tool that multiple investors (principals) entrust their legally owned funds to the trust investment company based on their trust in the trust investment company, and the trust investment company centrally manages and applies them to a trust plan project to obtain investment income for investors. In short, the collective fund trust scheme is a non-public investment fund. The investment direction of the raised funds can be loans, securities investment, industrial investment, equity investment and leasing.

Collective fund trust plan is different from securities investment fund, so it can't adopt public offering at present. According to the current regulations, a trust plan cannot have more than 200 entrustment contracts, and the amount of each contract cannot be less than 50,000 yuan. Trust and investment companies can't publicize the trust plan of collective funds through public media such as advertisements, so investors can only know the information of trust products of collective funds through trust and investment companies' customer service personnel, websites, telephones, correspondent banks and third-party financial institutions, and finally sign contracts with trust companies.