点评中国人民银行《信托投资公司管理办法》两款

02/08/01

中国人民银行于2001年1月19日颁布了新的《信托投资公司管理办法》，以下是我的两点评论，原本是给帮我找到文件的朋友的Email一部分。

After my first reading of the PBOC rule, I've found these provisions interesting. 

第十八条  信托投资公司不能支付到期债务，经中国人民银行同意，由人民法院依法宣告破产。

From what perspective and with what concerns, the PBOC is going to exercise this "approval" power, deserves scrupulous examination. I think there is very high potential risk for investors/beneficiaries if an "in-substance" approval power is delegated, more correctly a self-claim by PBOC upon its own assertion, to PBOC ---- an organ which is not an arbiter of law and where you can't have your own attorney to argue on your behalf.

There may exist certain situations that the trustees still want to see the Trust & Investment Corporation (TIC) survive but PBOC (which in that case represents the gov't and a macro-economy director) would like to see it goes into bankruptcy. Even though the trust estate is NOT the asset of the trustee TIC, in most cases where this rule 18 will apply, the trustee TIC doesn't have enough money AT HAND and therefore after the bankruptcy, a huge amount of trust estate will disappear. At least, in theory, before the court, different investors can argue for their own respective interests, and some of them may be able to suggest a restructure plan to help out the TIC.

Also, after PBOC sanctions the break-up of TIC, when the court is going to adjudicate the bankruptcy case, there can be a big matrix of different types of trust estates, competing with each other for dissemination of assets. If PBOC's policy-driven decision is so "macro-economy" orientated, the court's "practical" task would be formidable --- it's hard to transform every policy concern fitting into the concrete interest of everyone affected.

The bankruptcy DIRECTLY, and arguably "only", affects the interest of Investors. With investors' rights and benefits at stake, it's more appropriate to leave the whole work to the court, an adversary system, rather than PBOC's headquarter office.

No need to say that such task is, in fact, a reserved power and duty of the judiciary.

第二十条  中国人民银行在批准信托投资公司设立、变更、终止后，发现原申请事项有隐瞒、虚假的情形，可以责令补正或者撤销批准。

But after such defective incorporation and where some trust estates do have come into existence, upon the rescission of TIC, how much will the investor get back? With or without interest? I guess if it's another GITIC-type case, no Chinese official wants to use gov't income (revenue) giving interest remedy to foreign investors. But it's really unfair to investors -- they can't examine more than PBOC has already examined. ALL they can rely upon is that single piece of incorporation paper, bearing the "Approved. Go ahead!" red seal of PBOC. Now the PBOC is telling them "we've made a mistake"....

I just pick up two problematic clauses. The whole Rule is still a good one, at least to me. And thanks again for your help!

best wishes,

Z.X.