Trust-orientated Interpretation Of Corporate Regime And It's Legal Realization

Later than trust,modern corporate regime took shape in early modern capitalism period in England.Evolutions of trust and corporate regimes are rooted in differentiated logics due to political,economic,legal traditions and regime changes in the existing Anglo-American and Continental legal systems.The regimes of both corporate and trust,especially that of trust,are evolutionary and inherent in British tradition.The law of trust,originally a legal fiction of feudalism real property system,was stablished on the basis of Equity law.To a great degree,modern British corporate regime owes its soul and flesh to,and stays under the enduring influence of trust law.There is a trust soul inside the body of modern corporate law.To the contrary,corporate regimes in Continental countries are essentially exogenous,products of legal transplantation,following the principles of subjective construction,with no exception of Chinese practice.With the advent of Neo-Industrial Revolution,growingly integrated global economy relies extensively on information,knowledge and cognition for further developments.Meanwhile,the ever complicated,diversified and co-relative economic system prompted the transformation of commercial organizations toward the direction of flattering,ecological and cohabitate platforms.traditional corporate theories fail to offer effective interpretation for a large variety of corporate issues.While existing corporate theory or doctrines fail to provide satisfactory interpretation for corporate law issues,it's desirable to jump off traditional frame and resort to legal resources of trust law for a better solution.By nature,both trust and corporate regimes are developed around the central goals of managing and creating wealth,the core of the regimes being the construction of a controlling mechanism with respect to property managements.As for the characteristics of both trust and corporate regimes,with the issue of independent personality being the last remaining exception,there exhibit transparent structural similarities between two regimes in relation to asset partitioning,independent property,separation of ownership and management,and limited liability and etc.,the latest development of trust law even made the distinction of personality between the two regimes obscure,as the recognition of the personality of business trust organizations.While the core function of trust law has evolved from property management to wealth enhancement,the essential functions such as separation of rights and interests,entity protection,asset partitioning,division of power and endowment of discretionary capabilities remain unchanged.As the conceptions of trust regime,the inherent notion of equity,freedom and innovation fit well the such notions as efficiency,liberty and balance in modern corporate law.In a word,trust and modern corporate are keenly close to each other.Since the conceptional revolution of in early 21^stcentury,there exhibit a trend of merger between corporate law in the two major legal systems,traditional ante-regulatory corporate law giving way to liberalized and ex-regulatory one,the board of director-oriented governance model taking the place of owner-oriented governance structure,and fiduciary duties of directors in Anglo-American corporate law being codified.Corporate law is normally referred to as the basic law of market economy and embodies the technical and ethical rules of market behaviors.Modern society and market are highly complicated systems with multiple dimensions.Just as the concept of just,Modern corporate has a proteus face.Under observation form different disciplines or angles,corporate law displays diversified exhibitions.While it's welcome to probe into modern corporate law from the angle and with the help of other social knowledge,it's feasible to return to law science itself for a better understanding of corporate law when existing efforts prove unsatisfactory.This paper presents the first step to develop and perfect corporate theory by resorting to the doctrines and notions of trust law.Cross-disciplinary researches such as law economics,legal-social and legal-political interpretations of corporate law helped reveal certain aspects and concepts reasonably,but constraints remain.Research in this paper,with no doubt,shall face challenges and defects,but shall pave a new path and start a new trial to enrich our understanding of corporate law,instead of provide a paramount picture of it.The contractarian interpretation of corporate law still occupies the mainstream of scholarship,it fails to account for the vertical power allocation of corporate law though,so is with other efforts.Interpretation of corporate law should go back to the bottom or roots of the regime,which serve as the fundamental resources of the legal system.Historically speaking,modern corporate law evolved out of partnership law,contract las,agency law and trust law,and corporate theory absorbed elements from other social sciences such as economics,management,politics and etc.,The purpose of this paper is,by resorting to the trust law resources and by reference to the origin,foundations,concepts and historical developments of modern corporate law,to provide a plausible theoretical interpretation of modern corporate law and probe the feasible way to perfect legislation and application of corporate law.This paper holds that it's feasible to interpretate corporate law from the angle of trust law,theoretically and practically as well.Except for the forewords and conclusion,this paper divides into five parts:Chapter one:Co-relation of Corporate and Trust Law.Firstly,based on preliminary researches on the definition,structure,function and nature of trust law,this paper reveals that the fundamental legal logic of trust law is Fiduciary Law and the core elements of trust law lie in fiduciary duties and equitable remedies.Secondly,by probing into the similarities of corporate and trust legal regimes with respect to functions,structure,governance and responsibilities,this paper asserts that the two regimes share nearly unique legal structures,functions,governances and etc.,In both corporate and trust law,there exist inherent vertical power-obligation relations.Finally,by examining the influence the trust law casts on the development of modern corporate law,this paper points out that the two regimes are legal tools devised for the purpose of property management and wealth creation,share closely similar functions relating asset partitioning and power allocation.Trust law contributed much to the development of modern corporate law,and laid the theoretical foundations for corporate law with its doctrines and fiduciary duties system.In the course of global revolution and competition of corporate law and commercial organization,trust law and corporate law should learn from each other and develop together.Chapter two:Theoretical Foundation of Trust-oriented Interpretation of Corporate Law.Firstly,based on analysis and comparison with such existing interpretative models such as contractarian interpretation,corporate community theory,team production theory,constitution law theory,and social responsibility theory,this paper believes that,to a reasonable extent,the existing theories offered some insightful accounts for corporate law,but exhibit certain limits as well.The fundamental doctrine and especially fiduciary duty mechanism,offer a better account for the vertical power-obligation relationship inside corporate law and shall pave a better path to interpretating corporate law.Chapter there:Trust-oriented Interpretation of Corporate Law's Core Regimes.By applying the fundamental doctrine of trust law and theory of fiduciary duties and notion of equity,this paper offer interpretations for set-up and capital,governance and differentiated shareholders regime of corporate law,and point out that structural arrangements of unequal power-duty relationship determines the direction of corporate law's evolution and guarantees the successive success of corporates.Chapter four:Legal Practice of Trust-oriented Interpretation of Corporate Law.Based on substantive examine of Anglo-American countries‘legislation in the field of fiduciary duties,and secondly on the practices of the mainland and Taiwan area,this paper points out that while fiduciary duty has come to be a global practice,the trend for continental countries(regions) is to draw on the experience of Anglo-American Commercial Judgement Rule.At the same time,the paper analyzed the shortcomings in our country's fiduciary duty regime,and believe that trust doctrines serve the foundation of modern corporate law and resources for further perfecting corporate legal system.Chapter five:Realization Route to Trust-oriented Interpretation of Our Country's corporate law.Public mandatory and Private governance are the two main ways to realization of corporate law.The former takes the form of legislation and judicature.It's recommended in this paper that our country should set up fiduciary duty regime for legal representatives,corporates‘conformity duty regime,commercial judgement rules and perfect derivative litigation regime.In addition,guide-case system and further development by way of judicature shall also be applied for the purpose of softening legislation's delay and amending legislation's defects,and therefore,to prompt the emergence of a legal mechanism for trust-oriented interpretation of corporate law.