信托受益权的法律性质探讨

对于"信托受益权"究竟是一种什么样的权利,无论是英美法系还是大陆法系持续争论了百余年。信托在现代商业和金融交易领域发挥着重要作用,我国广泛应用于证券投资基金、资金信托和资产证券化中。我国《信托法》是法律对信托社会需求的回应,更多地采纳了合同理论,为信托合同提供了一套强制性的标准化条款。我国应借鉴"物权说"完善信托财产登记制度,吸收"企业组织"理论强化信托的资产分割功能。     

商事信托法律构造研究

商事信托作为商事组织的一种形式,运用传统信托运作方式中所有权形式分割,责任与利益分离,受托人责任与风险承担来实现商事组织的灵活融资经营和受益人的信托收益。商事信托得益于信托的资产分割功能,使商事组织享有独立于信托所有人及其管理人的资产,得以自己名义经营管理、与第三人进行交易,产生独立的法律关系,承担独立法律责任,理应具有商事信托之独立法律主体地位,此乃我国商事信托发展和商事组织法之规范方向。     

作为企业组织形式的信托与公司制度的比较

商业信托与公司是两种不同的企业组织形式,二者在资产分割及其所导致的债权人模式上是没有区别的,这奠定了信托作为企业形式的基础;商业信托与公司在企业所有权安排上的差异在于,信托将控制权安排给了人力资本所有者,而公司则是将控制权安排给了非人力资本所有者,这导致了两者在治理结构与应用范围上的差别.     

中国资产证券化的风险与监管

资产证券化的定义有很多种,本文拟引入JohnDeason的定义,即资产证券化是将产生于发起人所有应收款的现金流转化为平稳的偿付流的过程,这样使得发起人可以通过债券的发行实现资产担保融资,这些债券本质上对应收账款的信用而非对发起人信用有有限追索权,并且在融资本质上是自我清偿的。中国的资产证券化是建立在财产信托相关法律基础上的,因此,对其作如下定义更为合适:以信托制度为基础,以财产(专指可以预期产生稳定现金流的财产)信托为形式,通过信托权益转让,径由私募或公募,提前获得未来现金流来融通资金的,无论是信贷资产信托、房地产信托…     

我国信托型资产证券化的理论与实践问题及其完善

虽然证券化是引发金融危机的原因之一,但作为一种金融创新形式,证券化是不会轻易退出历史舞台的.信托财产的独立性与信托的组织形式,具有实现证券化目标的天然优势.我国的资产证券化选择了信托模式,但是源于英美法系的信托制度却与具有大陆法系传统的中国法律制度存在着冲突,因此导致了中国的资产证券化实践中出现了理论上难以解释的问题.中国资产证券化理论与实践问题的解决,最终要通过信托法律制度的完善.     

规范财产管理制度的基本法——写在《中华人民共和国信托法》颁布之际

信托是源于英国衡平法的一种为他人利益管理财产的法律制度，其独特的法律构造是：财产所有人（委托人）通过契约或遗嘱等方式将其财产（信托财产）权转移给有管理能力且值得信赖的人（受托人）名下，使其为人指定的人（受益人）的利益或特定目的，管理、处分该财产，间言之，信托就是信任委托，反映委托人，受托人和受益人三方之间存在的以财产权为中心的法律关系，信托制度在运作上极富弹性而且具有广泛的社会机能，任何人都可以通过信托方式实现各种各样的合法目的，故在英美法系国家被广泛地运用于民商、商事和公益领域近一个世纪以来，许多大陆法系国家和地区也纷纷引进信托制度，并立法予以规范。     

论股东表决权信托制度对规范关联交易的作用

股东表决权信托制度是产生于美国的一种特殊的信托.本文通过对股东表决权信托制度的本质和特征的分析,说明表决权信托是规范关联交易的有效方式.运用表决权信托可抵制不公平关联交易,避免不公平关联交易中公司财产的损失,保障公司债权人的利益,保护中小股东的合法权益.     

信托制度与银行业务的拓展

信托制度是一种以资产为核心、以信用为基础、以委托为方式的现代财产管理制度。信托制度的风险隔离机制，对于防范资金风险、提高管理效率是一种良好的技术选择。如果受托人破产或受到别的侵害时，信托财产可以受到保护。在运用财产时，信托管理的方式比较灵活，有利于实现基金的安全。信托业务涉及多项业务领域，既可以对动产、不动产、无形资产进行管理、运用和处分；也可以从事投资、融资、财产保管、处理债权等多方面业务，具有广泛的适用性和高度的灵活性，在激活金融市场、促进金融产品横向交叉合作方面能发挥巨大的积极作用。在现行分业监管的法律环境下，银行如何依据我国《信托法》、《信托投资公司管理办法》和《信托投资公司资金信托管理暂行办法》等规定，利用信托制度进行业务拓展，如代理信托资金收付业务、信托资产托管、资产证券化、不良资产处置等，对银行相关的资产、负债业务进行重塑和创新，均具有重要的理论和现实意义。     

有限责任合伙解析

有限责任合伙,简称LLP,是近年来流行于英美的商业组织形式,特别受到专业人士的青昧.它是对传统合伙与公司各自优点的结合,其意义在于合理限制专业人士法律责任.LLP下合伙人的法律责任及其与债权人利益保护之间的平衡,是有限责任合伙法的核心规则.有限责任合伙这种组织形式对我国的注册会计师以及其他专业人士也有积极的适用意义.     

信托经营是房地产业的最佳选择

中国房地产业的发展需要金融业提供奎方位的支持，不动产信托是最佳选择。在信托制度下，信托机构以财产所有人的身份对信托财产进行蕾运，为收益人谋利益。信托财产所具有的三种功能不仅能有效地促进房地产的再生产，为房地产业主提供最佳的专业服务，还能有力地支持投资体制改革和住房制度改革。要实现房地产的信托化经普，首先必须有政策法规的支持，信托机构应具备开办不动产业务的能力，同时还应有发达的金融市场和完善的空融监管体系。根据我国的实际情况，房屋信托、房地产保管信托，房地产妊租管理信托、发行不动产债券信托、发行不动产分割证信托等业务可在我国开拓发展。     

Claims against negligent or fraudulent directors: proposed amendments to South African legislation

Numerous jurisdictions provide for statutory civil liability of directors should they make themselves guilty of managing the business of a company in a reckless, wrongful or fraudulent manner or engage in insolvent trading. Such provisions can play an important role in protecting the interests of corporate creditors, provided that they are properly formulated. This contribution attempts to determine whether the interests of corporate creditors are adequately protected in terms of such provisions. In South Africa, directors' civil and criminal liability for reckless or fraudulent trading is currently provided for in terms of section 424 of the South African Companies Act. Civil liability of those engaged in knowingly taking part in managing the business of the company fraudulently or recklessly is provided for in terms of subsection (1). However, an analysis of case law on the interpretation of section 424(1) reveals that there are numerous uncertainties regarding the application of this provision. Similar provisions in other jurisdictions also display a number of shortcomings. South African company law has just undergone an extensive review, however, and a Draft Companies Bill of 5 February 2007 was recently published for public comment. The liability of directors for reckless or fraudulent trading is provided for in terms of the proposed section 93(2)(b) of the Draft Companies Bill. A comparison between section 424(1) and section 93(2)(b) indicates that some of the uncertainties that exist in terms of section 424(1) may be resolved by the new provision. Unfortunately, the proposed section 93(2)(b) raises some of its own questions and would furthermore seem to offer more limited protection than section 424(1) in certain respects. This unfortunate occurrence will detract from the protection that provisions such as these could afford to the interests of corporate creditors and it is submitted that such provisions should be drafted with great care. Copyright © 2007 John Wiley & Sons, Ltd.     

Challenging the Limited Liability of Parent Companies: A Reform Agenda for Piercing the Corporate Veil

This article examines the liability of parent corporations within company groups in Australia, to determine whether the law needs to be reformed. It gives an overview of the theory behind limited liability and situations in which piercing the corporate veil is arguably justified. It then considers whether the veil should be pierced to impose liability on parent companies. It makes the case that fault should be the basis of liability, and it looks at examples of veil‐piercing laws overseas to determine whether any of them might provide an appropriate template for liability. Recent Australian initiatives are considered before making suggestions for reform.     

Small firms in the SSBF

This paper uses Survey of Small Business Finance data to better understand how the owners of small firms use decisions about legal organization, firm size, capital structure, and owner investment in the firm to manage firm risk. The main findings are: Firms with unlimited liability are smaller, both when measured by assets and number of employees, and tend to be less leveraged than those whose owners limit personal exposure to firm liabilities. Entrepreneurs tend to hold largely undiversified positions by investing heavily in their firms, and this does not differ appreciably by legal organization. The percentage of firms with limited liability has remained virtually constant through time, although within this group there is a trend toward hybrid legal organizations with beneficial tax treatment. We estimate return on assets and find that entrepreneurship is a very risky undertaking, with high upside gain. The possibility of high future returns helps explain the coexistence of a large percentage of firms with negative equity and low default rates. The shape of the return distribution and limited liability interact; the option to declare bankruptcy shields owners from personal loss in the lower tail of the distribution while preserving the potential for significant firm returns in the upper tail.     

New Corporate Forms: One Viable Solution to Advancing Environmental Sustainability

There is a clear trend in corporate governance toward increased attention to the environmental and social impacts of business operations. Major consulting firms are advising Fortune 500 companies on how to become more environmentally sustainable, private equity and “impact” investors are measuring environmental, social, and governance (ESG) factors, and voluntary reporting and shareholder resolutions on issues of environmental sustainability are on the rise. While traditional corporate forms allow companies to embrace social and environmental responsibility with some measure of success, various real and perceived risks encourage directors to focus on short‐term profitability. Even if a company has a strong social mission at inception, founders often have difficulty “anchoring their mission” over time. And the lack of required disclosure of social and environmental performance makes it more difficult for investors to evaluate and compare companies. Many believe that the institutionalized mispricing of natural resources and the continued failure to price externalities, combined with the progressive nature of climate change, require the transformation of both business and law. This article discusses social and environmental sustainability within the traditional corporate form and then explores three emerging alternatives that are now being used by businesses in California: limited liability corporations (LLCs); benefit corporations (B corps); and flexible purpose corporations (FPCs). Of these three alternatives, FPCs—a corporate form that requires shareholders to agree on one or more social missions with management and the board—may be best suited to meet the needs of the many small private firms (as well as some large public companies) that, whether for purely economic or altruistic reasons, plan to integrate ESG into their operations.     

Synthetic Floating‐Rate Debt: An Example of an Asset‐Driven Liability Structure

An asset‐driven liability (ADL) structure is analogous to a liability‐driven investment (LDI) strategy. In both cases, the intent is to reduce the risk arising from a mismatch of assets and liabilities by aligning the interest rate sensitivity of cash flows on both sides of the balance sheet. Increasingly, defined‐benefit pension plans have adopted LDI strategies that reduce their equity assets and increase the average duration of their debt assets to better match the typical long duration of their retirement obligations to its employees. To illustrate the concept of ADL, the authors use the example of a corporate issue of traditional fixed‐rate debt that is transformed into synthetic floating‐rate debt using an interest rate swap (in which the corporation receives the fixed rate on the swap and pays at money market reference rate like three‐month LIBOR). The use of such long‐term, floating‐rate debt reduces interest rate risk when the firm has operating revenues that are positively correlated to the business cycle. However, a problem arises in that there is limited demand for such debt securities from institutional investors, many of which, because of LDI guidelines, prefer long‐term, fixed‐rate securities. Derivatives provide a way of resolving this mismatch between issuer and investor interests. In the article, the authors present a detailed example of the cash flows on the “receive‐fixed” interest rate swap (and its valuation for financial reporting) to show how the synthetic ADL debt structure obtains the desired outcome.     

Increasing the role of auditing in corporate governance

While critical accounting research has long been vitally interested in relationships between accounting, auditing and control of business organizations, mainstream research in accounting, finance and management has only recently displayed an increased interest in questions of corporate governance. The notion of corporate governance typically employed in mainstream research focus on enhancing benefits to shareholders. The structure and the functioning of boards of directors, and audit committees of such boards, are primary concerns within this line of research. This paper presents an alternative view of corporate governance and the role of auditing within corporate governance. We argue that the role of auditing should be increased in order to enhance the control of corporations for the benefit of all stakeholders and society generally.     

THE ENERGY MLP GOES INSTITUTIONAL: IMPLICATIONS FOR STRATEGY AND GOVERNANCE

Master limited partnerships (MLPs) were popular in the 1980s because of the favorable tax treatment of their cash distributions. But since the Revenue Act of 1987, which imited the lines of business and income sources for which this tax treatment was available, virtually all remaining public MLPs have been in natural resource businesses.
Institutional investors have traditionally avoided investing in master limited partnerships because any cash distributions must be treated as unrelated business income, creating an immediate tax liability. But in an innovative underwriting in May 001, Goldman Sachs offered shares in a limited liability company that would pay stock dividends equivalent to the cash distributions on its proportional ownership interest in Kinder Morgan Energy Partners, a pipeline operator. In effect, this structure allows tax-exempt investors (institutions) to own an interest in Kinder Morgan Energy Partners without triggering unrelated business taxable income.
An interesting aspect of this recent development is that while the MLP was originally viewed as a vehicle for slow-growth firms to distribute cash and wind down operations, the "institutional" MLP could be used to facilitate growth by attracting needed investment to businesses currently housed in MLP form—typically energy transportation and storage infrastructure businesses (so-called "mid-stream" energy assets). The new structure raises some potential corporate governance challenges in that it is highly complex and offers investors only limited control rights. But the authors' conclusion is that the institutional MLP is likely to be a successful financing innovation whose tax-favored status and extensive public disclosure will outweigh any governance concerns.     

The insolvent subsidiary and liability of the parent corporation in the USA,Argentina, and UNCITRAL

The increasing unacceptability of the concept of entity law and the emergence of the doctrine of enterprise law with respect to many aspects of the legal relationships of parent and subsidiary corporations particularly in insolvent situations is a very interesting issue. This change is very significant because it reflects a growing unwillingness on the part of the courts and legislatures to continue accepting the traditional view of corporate law when it no longer corresponds to the economic reality of the modern business enterprise in a complex industrialized international society. This paper examines the American case law and in particular the decisions that have imposed liability where a company is liable for the obligations of an insolvent subsidiary and by contrast the decisions that have denied liability. The paper also examines the position in Argentina within the Argentine law and the UNCITRAL recommendations in respect of liability issues within corporate groups in insolvency. Copyright © 2010 John Wiley & Sons, Ltd.     

Maidum's challenge,legal and governance issues in dealing with cross-border business enterprise group insolvencies

Maidum was an early Egyptian pyramid, the first attempt to build a true pyramid; but it suffered a spectacular collapse. In many jurisdictions, corporate structures are pyramidal in shape, with related enterprises conducting business in multiple jurisdictions. Where such structures financially collapse, creditors of different entities within a business enterprise group compete for limited assets that may or may not be located in the entity in which they have advanced credit and thus have claims. This article discusses the challenges posed by cross-border business enterprise group insolvency and the range of procedural mechanisms that may be available to protect creditors' claims, articulating broad principles that should be considered in such cases. The choice of cooperation and coordination mechanism is driven in part by whether the particular jurisdiction emphasizes liquidation or restructuring as the objective of the insolvency proceeding. Copyright © 2008 John Wiley & Sons, Ltd.