| The first question that has to be answered is when the fiduciary duty came into being.The fiduciary duty originates from the fiduciary relationship,and the fiduciary power is the symbol of fiduciary relationship.fiduciary power is derived from the legal personality of the beneficiary,and the legal personality of the beneficiary is highlighted through the use of legal capacity.The essence of the fiduciary power is the temporary transfer of the legal capacity of the beneficiary.The power is owned by the beneficiary ultimately,and the trustee is just fulfilling the will of the beneficiary.From another perspective,the fiduciary power is the pattern of manifestation of the beneficiary's specific legal capacity at the trustee.With the authorization of the beneficiary,the trustee obtained the power to exercise the legal capacity in beneficiary's place.Besides,it is just on the basis of the essence of fiduciary power's being derived from the legal personality of the beneficiary that the purpose of fiduciary power is determined by the beneficiary.The fiduciary power is different from pure individual power in nature,because the exercise of fiduciary power is an obligation to some extent,which can't be waived at will.Besides,the fiduciary power also has the characteristics of discretion,relationship attributes,limitation and the beneficiary's substantive interests.Among them,discretion is the most remarkable feature of the fiduciary power,which directly results in agency costs.Although in many cases,the fiduciary power can be reduced to discretion,the two are not the same concept.Finally,the fiduciary power determines the fidelity,dependence and inequality of fiduciary relationship.But fiduciary power theory also has its own defects because it can't explain the fiduciary relationship between consultants and clients.So,the author of this paper introduces the second criterion for judging fiduciary relationship: the influence based on trust.The standard has two major elements,one is trust and the other is influence.The author believes that the trust here only requires to satisfy external trust or vigilant trust.As for how to judge whether there is trust,the author of this paper holds the idea that signing a contract is direct evidence of trust.If there is no contract,it is necessary to judge whether there is trust according to the parties' ability experience and whether there is a long-term close relationship.As for the influential factors,it is essentially a state of fact under which one party psychologically tends to adopt the other party's judgments as well as suggestions.To sum up,the author believes that the fiduciary duty originates from the fiduciary relationship.There are two criteria for judging the fiduciary relationship: one is the existence of fiduciary power;the other is the influence based on the existence of trust.The former is a general situation,while the latter is a special situation.After resolving the problem of origin,what will be answered next is the question of what the fiduciary duty is,that is,the connotation of the fiduciary duty.The author of this paper holds the idea that the broad meaning of fiduciary duty shall include both subjective and objective requirements.In accordance with the subjective requirements of the fiduciary duty,the trustee must regard the purpose of accepting the beneficiary and regard the beneficiary's goal as his own goal.This means that the trustee requires to complete the conversion of values or moral values in the context of the fiduciary: the trustee shall not take into account things that are not associated with the beneficiary's goals.Under Kant's theoretical framework,the subjective requirements of fiduciary duty shall fall into the category of imperfect duty.Kant divides obligations into complete obligations and incomplete obligations.The complete obligation will clearly stipulate the specific actions and omissions.The actor's task is very clear,which is generally judged by the result whether it has completed the work.For incomplete obligations,the subjective state of the trustee is valued,and no specific program is specified.Thus,if the trustee accepts the beneficiary's goal and takes action for it,the incomplete obligation is fulfilled.For instance,company directors always require to keep in mind the goal of maximizing company value or maximizing shareholder wealth,and adopt means to realize this goal.Besides,the goals of the beneficiaries are usually abstract,and the means of realization are open.Trustees only have the freedom to choose means,but no freedom to change their goals.When the purpose of the beneficiary is accepted,the trustee will become very sensitive to the information associated with the goal,which will most conductive to the trustee performing his duties better.Based on the subjective requirements of fiduciary duty,the author of this paper summarizes the definition of duty of loyalty.The so-called duty of loyalty means that the beneficiary shall take the means it thinks is most beneficial to the realization of the beneficiary's purpose or make the judgment that it believes is most beneficial to the beneficiary.The duty of loyalty as well as the concept of loyalty are highly compatible.It is generally held the idea that loyalty has four possible meanings,namely higher exit cost,emotional binding,priority order and the same position.The “loyalty” in the duty of loyalty takes the meaning of the same position,and this also conforms with the subjective requirements of the fiduciary duty.Although subjective judgment occupies the main contents of the trustee's task,they are not the whole contents.Besides,the fiduciary duty as a legal concept can't only stay at the subjective level,but shall also contain objective requirements.The objective requirements of fiduciary duty must start with the three levels of legal requirements for interpersonal relationships.The three levels from low to high are: not to damage the interests of others(requirements of tort law);actively promote the interests of others(requirements of contract law);and exclusively promote the interests of others.The trustee shall meet the requirements of the third level.On this basis,the author of this paper proposed the objective requirement of fiduciary duty that the trustee shall take actions aimed at exclusively protecting and enhancing the interests of the beneficiaries.The standard of judgment is generally the experience of the public,and sometimes it is industry practice.In general,the research on legal concepts follows the approach from concept to feature.After exploring the connotation of fiduciary duty,the author of this paper intends to further investigate the nature of fiduciary duty.Firstly,the fiduciary duty has moral attributes.As stated earlier,the fiduciary duty requests the trustee to exercise self-restraint in its subjective state,which makes the fiduciary duty inevitably contaminated with moral complexion.Besides,in accordance with Kant's philosophy,it is also a virtue to apply practical reason to train one's character as well emotion so as to serve specific purposes.Laws or court judgments usually use moral vocabulary,such as “loyalty” and “dedication” to realize the expressive theories of law to cultivate the faithfulness of the trustees,because it is of great benefit to their fiduciary duties.Based on the two points mentioned above,the fiduciary duty is of a moral nature.Besides,some scholars in China attach much emphasis on the identity attribute of fiduciary duty,but the author of this paper believes that fiduciary duty doesn't have identity attribute.Since the fiduciary duty is not on the basis of the main concept of identity.The trustee is not an identity,who doesn't always occupy a significant social role(i.e.,broad identity).From a macro perspective,contemporary law is a process of de-identification,whether at the level of rights or obligations.Besides,the identity shall be bound to the subject,while the fiduciary duty shall be bound to the(a process of)relationship,the two are totally different.The contractual nature of fiduciary duty has always been the most controversial topic.The author of this paper holds the idea that the use of the contract-path method to analyze fiduciary duty has bid defects,the approach is too empty,which constrained by the problem of verifiable information.Besides,the two are diverse in many aspects: firstly,the value basis of fiduciary relationship and contract show difference.The former can only benefit others,while the latter can benefit others.Besides,the fiduciary relationship also has unique values such as enhancing mutual trust,cultivating a culture of trust,and enhancing social capital reserves.Secondly,the contract law has both the empowering function and the obligation imposing function,while the fiduciary law only has the latter.Thirdly,the fiduciary duty and contractual obligation are different in terms of source,contents and relief methods.In summary,it is not proper to believe that the fiduciary duty has contractual properties.The author believes that the correct way of expression is: there are many sources of the source of fiduciary power,and the contract is only one of them.Only at this time will the contract be associated with the fiduciary duty.To some extent,the fiduciary duty is just a legal concept at the theoretical level.It can't be believed that a certain legal norm is the fiduciary duty itself.The subjective and objective requirements of the fiduciary duty require to be promoted by the fiduciary rule,and the fiduciary rule is the concrete manifestation of the fiduciary duty in law.The beneficiaries have diverse goals in different fiduciary relationships and face different agency costs,so the loyalty norms are also diverse.The source of the fiduciary rule is very wide,which may come from the law,come from the guidance of the rules and also come from the industry practice.The conflict prohibition norm is one of the most significant fiduciary rules,which aims at promoting the fiduciary's performance of duty of loyalty,and the duty of loyalty belongs to the subjective requirements of fiduciary duty.Some scholars hold the idea that the prohibition of conflict norms aims to play a deterrent function,but the author of this paper disagrees.The author holds the idea that the prohibition of conflict norms plays a preventive part,and the adverse consequences that it tries to avoid are that the trustee takes into account improper factors when making a decision.Since once the trustee takes into account improper factors,he can't make the judgment that is most beneficial to the beneficiary,which violates duty of loyalty.And this is mainly resulted from two insurmountable thinking limitations of human beings: one is the capacity for rationalization;the other is that people “who can't be their own judges”.Thus,when the trustee violates the preventive obligation of the conflict prohibition rule,the law takes into account that the adverse consequences have already taken place,that is,the trustee has already violated duty of loyalty.The essence of the beneficiary's informed consent is actually an early exemption from liability for breach of fidelity obligations.Another big fiduciary rule that runs through the fiduciary relationship is the rule of prohibiting profits.The rule aims at promoting the realization of the objective requirements of fiduciary duty.Since illegally seeking self-interest obviously violates the exclusive requirement in the objective requirement of fiduciary duty.But the logic of the monetization ban is not so simple.In accordance with the theory of fiduciary power,the trustee acts as the legal capacity of the beneficiary.Thus,the benefits,costs and other resources generated in Fiduciary management activities belong to the beneficiary(burden).The rule of prohibiting profits is actually a derivative rule of the basic distribution rule,which is aimed at the situation where the trustee uses information,opportunities and other resources generated in the management activities of the faith.The use of these resources requests the consent of the beneficiary,otherwise the beneficiary's right to consent will be violated.The remedy that is provided for by the law in this regard is the return of benefits,which is essentially the monetary equivalent of the beneficiary's consent right,which is fair,objective and reasonable.Of course,the specifications mentioned above are just a few of the more common fiduciary rules in the fiduciary relationship,and the scope of fiduciary rules is by no means limited to this.In the meantime,the fiduciary rule also has boundaries.This means that not all obligations of the trustee fall into the category of fiduciary duties.Finally,the fiduciary rules may have strong and weak changes in diverse fiduciary relationships.This may be influenced by the factors as follows: the degree of authorization,the level of control,the stakeholder nature,whether it is in the commercial field,or the risks that are faced by beneficiaries,etc.The fiduciary rules are not all mandatory.In contrast,many fiduciary rules are default rules.The theoretical basis for the parties to the fiduciary relationship to choose the fiduciary rule lies in the beneficiary's right to self-determination.The fiduciary rules are designed to protect the interests of beneficiaries,and beneficiaries can of course abandon their own interests and lift the protection of fiduciary rules.Besides,it is often necessary to opt out fiduciary rules,such as the requirement to protect the trustee's enthusiasm for wealth creation,the demands for business development,the need to develop specific financial businesses,and the demands for socially responsible investment.In accordance with the basic principle of the default rule,the default rule is made up of two parts: entity rules and change rules.The higher the requirements for changing the rules,the higher the cost for the parties to select the fiduciary rules.This will weaken the parties' motivation to elect the fiduciary rules,thereby increasing the stickiness of default rules.Compared with the contract,the fiduciary rules are of more stickiness property because they require the trustee's full and informed consent.This means that the trustee has to assume heavier information disclosure obligations.The law gives the fiduciary rules greater stickiness for two main reasons: firstly,due to information asymmetry,the fiduciary relationship is hard for parties to have a negotiation effectively.Secondly,the trustee can make use of his vantages to disguise and whitewash evidence.Excluding certain fiduciary rules in the current transaction after the beneficiary's informed consent is “selected on a case-by-case basis”.There is not much controversy in the case-by-case selection,but the greater controversy lies in “generally selected”.The so-called general election refers to the direct exclusion of the application of a certain fiduciary rule in the company's articles of association,partnership agreement,trust documents,etc.Very careful attention must be paid about general selection,because it will have the negative effects as follows: firstly,denying the beneficiary's right to relief;secondly,leading to terrible information problems;thirdly,compromising the social normative function of the fiduciary rules;fourthly,destroy the intermediary coordination function of social roles.In order to further summarize the factors that influence the general selection limit,the author of this paper compares the trust with the company.The fiduciary rules in the context of trust are more hard to select than companies.The author believes that it is mainly on the basis of the following two factors: the strength of the market's binding power;the degree of trust and dependence.Finally,the author of this paper summarizes the “unselectable core” in the fiduciary rule: firstly,it is necessary to pay minimum efforts as well as attention,secondly,it is not allowed to act maliciously,and Thirdly,it is not allowed to consider oneself as the real owner(this is mainly aimed at misappropriating property,embezzling funds,using entrusted property for profit,etc.).In fact,all three cores are on the basis of the same principle: fiduciary relationship shall exist for the benefit of the beneficiaries.In summary,any election of the fiduciary rules and the loss of “the fiduciary relationship requires to exist in the core of the beneficiary's interests” are invalid.The fiduciary duty can be eliminated in two ways: one is that the trustee has properly performed the fiduciary duty;the other is that the fiduciary breached the fiduciary duty,and the fiduciary duty will be transformed into fiduciary liability.Fiduciary liability is a natural extension of fiduciary duty.In the Anglo-American law system,there are many forms of liability for breach of fiduciary duty,including interest attribution,constructive trust,injunction,compensation for damages,restitution,dissolution of the company,criminal penalties,etc.Among them,the basic logic of interest classification has been elaborated in the previous article.The main problem to be faced is the scope of interest classification.These questions include whether the trustees can retain the derivative income,whether they can retain the subsequent appreciation,whether they can retain the income after the property is mixed,and whether they can pay cash to keep the illegally acquired property.There have been no final conclusions on these issues.If a constructive trust is applied,the problems mentioned above will be resolved.Thus,the author of this paper holds the idea that China shall introduce constructive trusts as a remedy for beneficiaries.Firstly,the author of this paper believes that there is no conflict between the constructive trust and China's existing contract law,property law,and tort law system,that is,there is no system incompatibility.Secondly,China's trust law shall make corresponding adjustments to expand the institutional space for creating constructive trusts.Currently,the constructive trust in the Anglo-American legal system has a dilemma between protecting the interests of beneficiaries and protecting the interests of third parties.The author of this paper thus puts forward an improvement plan and holds the idea that the constructive trust can be further transformed,the constructive trust greater flexibility can be given,the beneficiary right in the constructive trust shall be divided into a strong beneficiary right and a weak beneficiary right,and the differences in unlawful profit of the trustee situation shall be distinguished and treated differently.It's not comprehensive to just discuss the responsibilities of the trustees,because,in reality,there are a large number of situations where a third person assists the trustee in breach of fiduciary duty.Some scholars object to imposing legal responsibilities on third parties outside of the fiduciary relationship,but the author of this paper doesn't agree.The author believes that the responsibility imposed on the third party is due to the need to correct justice,and also has the function of containment and compensation,so the third party shall be imposed responsibility.Besides,the third-party assistance responsibility shall be an independent responsibility,because the existing laws can't provide a unified normative basis for the responsibility.Finally,the form of third-party assistance liability is mainly to lose compensation.In addition to assisting third parties,there are third parties who are purely counterparties to the transaction.The author of this paper holds the idea that the key here is still the setting of informed standards,which determines the scope of the third party's responsibility.The author believes that the setting of the informed standard shall follow the basic Hand Formula,which is to compare the investigation cost with the expected loss.The determination of parameters such as survey cost and expected loss requests consideration of the relevant economic,social,and legal background.The author of this paper takes trust as an entry point for analysis,holding the idea that China shall adopt a “clear and definite” standard that is different from that of the U.S. |
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