金融法(双语)第六章 证券投资基金法律制度

第六章 证券投资基金法律制度（1）
一、证券投资基金概述
3. 案例
Jones v. Harris Associates L.P
Court’s reasoning-
The Supreme Court
〔1〕The meaning of § 36(b)'s reference to “a fiduciary duty with respect to the receipt of compensation for services” FN7 is hardly pellucid, but based on the terms of that provision and the role that a shareholder action for breach of that duty plays in the overall structure of the Act, we conclude that Gartenberg was correct in its basic formulation of what § 36(b) requires: to face liability under § 36(b), an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's length bargaining.
第六章 证券投资基金法律制度（1）
一、证券投资基金概述
3. 案例
Jones v. Harris Associates L.P
Court’s reasoning-
The Seventh Circuit
〔1〕A panel of the Seventh Circuit affirmed based on different reasoning, explicitly “disapprov[ing] the Gartenberg approach.”
一、证券投资基金概述
3. 案例
Jones v. Harris Associates L.P.
Court’s reasoning-
The District Court
〔1〕Applying the standard adopted in Gartenberg v. Merrill Lynch Asset Management, Inc., the court concluded that petitioners had failed to raise a triable issue of fact as to “whether the fees charged ... were so disproportionately large that they could not have been the result of arm's-length bargaining.”
Investment Company Act of 1940
The Investment Advisetem: United States Securities and Exchange Commission
第六章 证券投资基金法律制度（1）
〔2〕[a] fiduciary duty differs from rate regulation. A fiduciary must make full disclosure and play no tricks but is not subject to a cap on compensation.”
〔2〕Congress' approach recognizes that courts are not well suited to make such precise calculations. In reviewing compensation under § 36(b), the Act does not require courts to engage in a precise calculation of fees representative of arm's-length bargaining.
〔2〕 in light of those comparisons as well as comparisons with fees charged by other investment advisers to similar mutual funds, the Court held that it could not reasonably be found that the challenged fees were outside the range that could have been the product of arm's-length bargaining.
加强投资者权益保护 初步建立起完善的证券投资基金法律体系——确定了以中国证监会为核心的监管体系
第六章 证券投资基金法律制度（1）
一、证券投资基金概述
2. 美国的证券投资基金
Types
Legal basis: Securities Act of 1933
Securities Exchange Act of 1934
〔3〕 the amount of an adviser's compensation would be relevant only if the compensation were “so unusual” as to give rise to an inference “that deceit must have occurred, or that the persons responsible for decision have abdicated.”
第六章 证券投资基金法律制度
一、证券投资基金概述 二、证券投资基金主体
第六章 证券投资基金法律制度（1）
一、证券投资基金概述
1.中国证券投资基金 中国证券投资基金的定义 发展历程：《证券投资基金管理暂行办法》→各相关部门发布规范
性文件→《证券投资基金法》 《证券投资基金法》:确定基金业法律地位