司法实践视角下基金托管人的义务履行与责任承担

基金托管人在基金治理结构中履行保管及监督义务,具有独立的法律地位及重要的法律功能。然而司法实践正面临基金托管人的义务履行阶段存有争议、义务履行判断标准不一、与基金管理人的责任界分存在困难等现实裁判困境。本文采用案例分析法,聚焦司法实务中基金托管人的义务履行与责任承担问题,深入分析司法实践困境所产生的原因,明确基金托管人与基金份额持有人之间构成信托关系而非仅是合同关系,基金托管人与基金管理人同为受托人但并不构成共同受托人;论证基金托管人的义务履行应贯穿于基金的“募集-投资-管理-退出”各个阶段;履行标准应结合基金托管人的实际审查手段及能力依照具体标准进行相应的层次化考量;在独立责任及连带责任之外引入补充责任方式实现与基金管理人的责任界分;为司法机构解决基金托管人相关纠纷提供统一的应对之策,以维护投资者的合法权益。     

我国基金托管制度分析

在我国,基金托管人主要行使保管基金资产和监督基金运作两大职能.本文通过对基金托管人监管效力进行分析表明:在实际运作中,由于基金托管人与基金管理人之间存在一定程度的利益关系,使得基金托管人不能充分行使其监督职能.本文建议引入将托管与监督相分离的受托人制度,以维护投资人的利益.     

我国基金托管制度分析

在我国,基金托管人主要行使保管基金资产和监督基金运作两大职能。本文通过对基金托管人监管效力进行分析表明:在实际运作中,由于基金托管人与基金管理人之间存在一定程度的利益关系,使得基金托管人不能充分行使其监督职能。本文建议引入将托管与监督相分离的受托人制度,以维护投资人的利益。     

我国基金治理结构之反思

我国基金业发展迅速,但是基金的组织形式只有契约型基金一种,而契约型基金却存在着基金持有人利益代言人缺失,基金持有人和托管人监督职能先天不足,基金管理人自律效果不好等缺陷。这些缺陷导致了我国基金的治理结构存在先天性不足,投资者利益常常得不到有效的保护。通过分析美国的基金治理结构,提出可以通过内外两方面来完善基金治理结构;通过引入公司型基金或建立独立受托人制度来完善基金内部治理结构;通过完善基金外部环境采促进基金治理结构的完善。     

加强商业银行基金托管监督职能问题思考

在我国基金托管制度中,商业银行作为基金托管人对基金公司的监督职能存在较严重的缺失,原因在于制度设计的内生缺陷。本文建议通过建立科学合理的利益分配机制,赋予基金托管人必要的监督权利,以有效制约基金公司的权力滥用,保护投资者利益。     

证券投资基金托管人职责的深化

基金托管人制度是基金业迅速、健康发展的保障。基金托管人作为独立于基金管理人和投资人的基金当事人，依据基金托管制度“管理与保管分开”的原则，通过对基金保管和对基金资产操作的监督来有效保护投资的利益，以防止基金资产被挪作他用和被不合理运用给投资带来损失，所以从这点来讲基金托管人是基金投资人权益的代表。     

我国现行证券投资基金制度的法律缺陷及完善

证券投资基金对于稳定、发展、繁荣我国证券市场具有着重大意义,然而根据我国现行法律,我国现行的证券投资基金制度在基金份额持有人大会的法律地位、基金管理公司的独立董事制度和基金托管人法律地位等方面还存在不少缺陷。笔者通过分析上述问题,对完善我国《证券投资基金法》提出明确基金份额持有人大会的法律地位、设立基金份额持有人大会常设机构、完善独立董事制度、加强托管人的监督职责等四点建议。     

信息结构与基金管理人的违规行为分析

通过对基金各行为主体的博弈分析，发现信息结构对基金管理人的经营行为有重大影响。在信息不对称条件下，任何加大基金管理人违约成本和减少信息不对称的措施都有助于减少基金管理人的违规行为。为此，需要建立激励相容的监管制度，强化托管人的独立地位及其约束机制，完善基金管理人的内部治理机制，加强证券投资基金的信息披露并加大基金管理人的违规成本。     

从保护投资者利益角度看当前我国开放式基金治理

一、我国开放式基金治理结构的现状我国开放式基金首先由基金管理人发起,管理人与托管人签订基金契约,向公众招募后正式成立。属于契约型基金,没有董事会等有形机构来行使基金份额持有人的权利。它的治理结构主要指的是基金份额持有人、基金管理人、基金托管人之间的权利和义务     

从保护投资者利益角度看当前我国开放式基金治理

一、我国开放式基金治理结构的现状 我国开放式基金首先由基金管理人发起,管理人与托管人签订基金契约,向公众招募后正式成立.属于契约型基金,没有董事会等有形机构来行使基金份额持有人的权利.     

Commonalities in investment strategy and the determinants of performance in mutual fund mergers

This paper examines the determinants of cross-sectional variation in post-merger mutual fund performance. Mergers between funds with similar management objectives, as reflected by average portfolio book-to-market ratio, price–earnings ratio, beta and market capitalization values, outperform mergers between funds with dissimilar strategies. This superior performance transcends lower portfolio rebalancing costs which might be realized between merging funds which hold more assets in common. These results suggest that mutual fund mergers create collaborative benefits between funds with similar strategies. We also examine if fund governance structures influence the fund pairing process, testing if stronger fund oversight mitigates pairing mismatches. We find that less independent boards of trustees and boards with higher compensation are related to greater strategic mismatches between funds. These results suggest that more entrenched boards are more tolerant of fund mismatches which benefit the investment company, yet are not in investor’s best interests.     

Do independent directors and chairmen matter? The role of boards of directors in mutual fund governance

Recent scandals involving late trading, market timing, and other trading abuses have prompted the SEC to propose changes in the governance of mutual funds. Among these changes are the requirements for an independent chairman and a board consisting of at least 75% independent directors. Using a large sample of mutual fund families for 2002, we find that neither the probability of a fund scandal nor overall fund performance is related to either chair or board independence. Overall, our results question the usefulness of these recently proposed SEC changes in mutual fund governance.     

UNITARY BOARDS AND MUTUAL FUND GOVERNANCE

A unique governance structure for mutual funds is unitary board—one board overseeing all funds in the entire family. We find strong evidence for unitary board as an effective governance mechanism. Funds with unitary boards are associated with lower fees, are more likely to pass the economies of scale benefits to investors, are less likely to be involved in trading scandals, and rank higher on stewardship. In contrast, funds with larger or more independent boards charge higher fees and rank lower on stewardship. Our findings indicate that unitary boards of small size, rather than independent boards, may be more beneficial to fund shareholders.     

Effect of regulatory oversight on the association between internal governance characteristics and audit fees

We examine the relationship between internal governance, external audit monitoring and regulatory oversight for a sample comprising industrial companies and financial/utility companies subject to additional industry‐specific regulation. Our results indicate that the association between audit fees and board/audit committee independence and size are weaker for regulated companies. These observations are consistent with the notion that regulatory oversight partially substitutes the external audit as a monitoring mechanism. However, boards/audit committees with more multiple directorships demand a more extensive audit in the presence of regulatory oversight to protect their reputation capital. Our study enhances our understanding of the complex relationships among the major corporate governance elements.     

Fund governance contagion: New evidence on the mutual fund governance paradox

Why is poor governance pervasive in the mutual fund industry? Researchers, practitioners and regulators have attributed this failing to a lack of director independence from fund management. This paper proposes an alternate explanation: fund governance is contagious. Fund directors act as vectors, transmitting governance attributes from their primary place of employment to the fund. Using hand-collected director employment data, the paper finds that boards dominated by directors tied to the finance industry, to shareholder unfriendly firms, and to shareholder unfriendly funds, have worse governance. Examining employment shocks, litigations and firm bankruptcies, within a quasi-experimental framework, provides causal evidence that these connections cause fund governance spillover. Overall, the results suggest that contagious governance plays a role in propagating business malpractice in the mutual fund industry.     

CADBURY AND BEYOND: PERCEPTIONS ON ESTABLISHING A PERMANENT BODY FOR CORPORATE GOVERNANCE REGULATION

The development of codes of corporate governance in the UK can be criticized on two grounds: first, that the process has been, to a large extent, ad hoc; and second, that the codes of corporate governance lack an enforcement mechanism. To remedy these problems this paper considers the desirability of establishing a permanent framework for the regulation of corporate governance of UK listed companies, and whether such a framework might be linked to the regulation of accounting and audit. Three possible models for the regulation of UK listed company audit (an Auditing Council, a Commission for Audit, and a UK SEC), which might also include the regulation of corporate governance, are developed. The results of a study, using postal questionnaires and interviews designed to elicit the views of primary and secondary stakeholders and influential onlookers, as to the desirability of including corporate governance within the proposed models for the regulation of listed company audit, are reported. The findings suggest only limited support for corporate governance regulation to be assumed by an audit regulatory body. However, of those supporting reform, oversight by an independent body with statutory powers, such as a UK SEC, received greatest support.     

Independent directors’ board networks and controlling shareholders’ tunneling behavior

As one of the channels by which board directors build important relationships, board networks can affect the governance role of independent directors. Defining director board networks as their connections based on direct ties they establish when serving on at least one common board, this paper explores the role of the network centrality of independent directors in restraining tunneling behavior by controlling shareholders in the Chinese capital market. Our empirical evidence shows that tunneling behavior by controlling shareholders is negatively related to the network centrality of independent directors and that this relationship is stronger when non-operating fund occupation is used as the measure of tunneling. The results of our study show that board networks can help independent directors to restrain tunneling behavior by large shareholders, which plays a positive role in corporate governance.     

Enterprise risk management and firm performance: Role of the risk committee

In recent years, there have been increasing efforts in the corporate world to invest in risk management and governance processes. In this paper, we examine the impact of Enterprise Risk Management (ERM) on firm performance by examining whether firm performance is strengthened or weakened by the establishment of a board-level risk committee (BLRC), an important governance mechanism that oversees ERM processes. Based on 260 observations from FTSE350 listed firms in the UK during 2012–2015, we find the effectiveness of ERM significantly and positively affects firm performance. We also find strong BLRC governance complements this relationship and increases the firm performance effects of ERM. Our findings suggest the mere formation of a BLRC is not a panacea for ERM oversight; however, existence of a structurally strong BLRC is crucial for effective ERM governance.     

Board Independence and Mutual Fund Manager Turnover

This paper studies the relationship between board independence and manager turnover in the mutual fund industry. Using the Lipper 2003 mutual fund board data, we find that manager turnover is more likely to happen to funds with poor prior performance and more independent boards. Consistent with previous studies such as Tufano and Sevick (1997), our research provides new evidence in support of the Securities and Exchange Commission's approach of improving fund governance by promoting board independence.     

Exploring the transitional behavior among value and growth stocks

Unlike the corporate funds in the US, mutual funds in many countries such as China and Germany operate under a different governance arrangement and are thus called “contractual funds.” The governance structure of contractual funds allows shareholders of fund management companies, rather than the fund investors, to be responsible for asset management decisions. Therefore, a fund’s governance attributes may be especially important in driving its performance. Using a comprehensive governance data covering Chinese mutual funds, this paper finds that the governance and organizational structures of Chinese fund management companies significantly influence the performance of their affiliated funds. In particular, while a larger stake from the top1 shareholder significantly improves the performance of affiliated funds, the presence of multiple largest shareholders reduces their performance. Moreover, fund management companies that offer fewer fund products and charge higher management fees tend to perform better. Finally, more institutional holding in a fund appears to function as an external supervisory surrogate for internal board governance to help improve fund performance.