Whether the open-end fund share can be pledged, there is no clear provision in the existing laws, regulations and normative documents, which should be reasoned from the guarantee law, the securities investment fund law, the trust law and relevant legal provisions.

According to the basic principle of China's guarantee law, pledge means that the debtor or a third party transfers the specific property to the creditor's possession. Before the debt is unliquidated, the creditor has to take possession of the property; when the debtor fails to perform the debt, the creditor has the right to discount the property or The price of the auction or sale of the property shall be paid preferentially. Pledge is divided into movable property pledge and rights pledge due to the nature of the subject matter. The pledge of rights is a guarantee set by the rights other than ownership. For the right to pledge, the "Guarantee Law of the People's Republic of China" (hereinafter referred to as "the Guarantee Law") clearly lists the bills of exchange, checks, bonds, deposit slips, warehouse receipts, bills of lading, stocks, stocks and trademarks that can be transferred according to law. Property rights in exclusive rights, copyrights, and patents, but they are also allowed to be pledged "other rights that can be pledged according to law." It can be seen that the guarantee law does not explicitly stipulate that the open-end fund shares can be pledged, and whether it can be pledged or analyzed from its legal attributes.

China's securities investment fund is based on the trust law. The basic principle of the trust law is: after the trust is established, the trustee obtains the nominal ownership of the trust property, but does not enjoy the full power of ownership, and must be managed or disposed of according to the purpose of the trust. Trust property. The beneficiary has the right to trust in the trust property, but has no right to manage the disposition of the trust property and the ownership of the trust property. The trust property is independent and distinct from the inherent property of the trustee and other property of the principal. The fund share belongs to the trust property. When the fund is established, the ownership of the property represented by the fund share is transferred to the fund trustee. According to the design of almost all open-end fund contracts, securities investment funds are self-benefit trusts. The principal and the beneficiary are both fund share holders, and the fund share holders have the right to benefit from the fund shares.

According to the principle of guarantee law, the right to pledge has two main characteristics. First, it must be property rights, and the pledgor must have ownership or disposition of the pledge; second, it must have concession and must have the possibility of price change. In view of this, since the fund share holders lose their ownership of the fund shares after the fund is established, the fund shares of the securities investment fund's legal relationship are not entitled to disposition, and the independence of the fund assets is also blocked. The fund share holders have other property rights in addition to the beneficiary rights of the fund assets. Therefore, the fund share holders cannot use the fund shares as the pledge target.

However, the fund share holders have the right to benefit from the fund share. From the characteristics of the fund share beneficiary rights, the fund share beneficiary rights can be used as the pledge target. The reasons are as follows: First, the fund share beneficiary rights belong to property rights. The fund share beneficiary rights include the right of the fund share holder to obtain the fund income during the existence of the fund legal relationship, the redemption after the fund redemption, and the right to obtain the remaining fund assets after the fund is liquidated. These rights are property. Second, the fund share beneficiary rights can be transferred in accordance with the provisions of the law and the fund contract. Article 48 of the "Trust Law of the People's Republic of China" (hereinafter referred to as "the Trust Law") states: "The beneficiary's trust beneficiary rights may be transferred and inherited according to law, except where the trust documents have restrictive provisions." Article 70 of the Securities Investment Fund Law of the People's Republic of China (hereinafter referred to as the “Securities Investment Fund Law”) clearly stipulates that the holder of the fund share has the right to “transfer or apply for redemption of the fund shares held by it”. The transfer of fund shares is accompanied by the transfer of the fund share beneficiary rights, and the free redemption of fund shares can guarantee the liquidity of the fund share beneficiary rights. Article 47 of the Trust Law clearly stipulates: “If the beneficiary is unable to pay off the debts due, the trust beneficiary rights may be used to pay off the debts, except where the laws, administrative regulations and trust documents have restrictions.” Therefore, there is no legal obstacle to the pledge of the fund share beneficiary rights to creditors. In practice, the fund pledge should be the pledge of the fund's share of the beneficial rights, rather than the pledge of the fund's share.

However, in practice, when setting the pledge of the fund share beneficiary rights, we must pay attention to two problems in the transfer of sexuality. First, some funds are subject to the purpose of establishment, and the fund contract restricts the free transfer of fund shares, such as the southern safe haven. The opening date of the value-added fund can only be on Mondays. Redemption is not possible on every trading day. Second, according to current industry practices, the transfer of fund shares is generally handled as a non-transaction transfer, and some fund contracts or recruitment. The specification does not allow for the free transfer of fund shares or sets a number of conditions for the transfer of fund shares. Of course, if the fund share beneficiary rights are realized through redemption, neither of these problems will exist, but the redemption fee of the fund share is generally higher than the transfer fee of the fund share. However, the above two issues do not negate the concession of the fund share beneficiary rights.

Regarding the establishment of the pledge of the fund share beneficiary rights, the author believes that the written vouchers of the fund share beneficiary rights are fund account cards, which are registered securities. The quality of documented securities with papers generally has the consent of the parties and the two acts of delivering securities. In order to be established, in the current situation, many fund management companies have not issued fund cards to fund share holders, but use the registration data at the fund registrants as the basis for the benefit of the fund shares. The Guarantee Law does not stipulate the way in which the fund share pledge is set. Most fund management companies' open-end fund business rules do not provide clear guidance on the pledge of the fund share beneficiary rights. In practice, each fund management The company basically refers to the practice of stock pledge on this issue, that is, after the fund share holder has entered into a written pledge agreement with the creditor, both parties must jointly go to the fund registrant to handle the pledge registration. At this time, the pledge registration is a necessary condition for the establishment of the fund share pledge, not just the third party.

The Guarantee Law stipulates that the stock pledge contract shall take effect from the date of registration. The time limit for the pledge of the fund share beneficiary rights may also refer to this provision. However, if the law does not clearly stipulate, the parties need to make a pledge agreement. Convention.