The Research On Civil Liability For Private Equity Fund Manager

In recent years, China's private equity funds has been a great development, but also exposed a number of problems, the most prominent private equity fund managers is in violation of civil obligations, fund investors and damage the legitimate interests of stakeholders, which is currently private equity fund regulation is very incomplete relations. Private equity fund managers as a result of an agreement on control of all of the terms of the fund capital, operating funds on direct control of the risks, and on the other hand, fund investors are not the direct management of its investment funds, only through private fund managers hold the civil liability to protect their interests. Therefore, in building a fair and reasonable system of civil liability for private equity fund managers, for the realization of the rights and interests of all parties to maintain the balance between the interests of all parties have a decisive significance. Private equity fund managers in respect of civil liability in the final analysis, the risk of a fair market operation and distribution issues. It must take into account the activities of fund managers to practice the system of values and fund investors and other stakeholders of both the interests of both to maintain the balance of both forces. Guided by the interests of a balanced approach to private equity fund managers is not the definition of civil liability does not involve the practice of fund managers and the attribution of fault that the principle of the determination of liability for damages and equitable sharing of the problem, etc., of fund managers can not be wrong characteristics of experts, practitioners have a good understanding of the characteristics. In view of this, this article intends to conduct a comprehensive interpretation of five parts:The first part of a private equity fund managers to introduce the concept of law, the legal status of civil liability and private equity fund managers, such as the nature of fundamental issues. Private equity fund managers is the use of specialized securities analysis, trading and investment in knowledge, in accordance with relevant laws and regulations and the provisions of contracts, by raising or management of the use of private funds, to invest in various securities, or the sale of its managed constant value of the Fund's assets and investment securities income beneficiaries access to the operating agency. The legal status of its more specific: whether in the law of the legal relationship of trust from the trust in civil law legal systems, private equity fund managers are in a position to be trusted, and its legal relationships in private equity funds in a the central position. The section also discusses the civil liability for private equity fund managers the nature of the Tort Liability Study, breach of duty, the responsibility of the characteristics of experts.The second part of the private equity fund managers on the theoretical basis for civil liability. Private equity fund managers to bear civil liability for negligence practice is the real economy needs to respond to a basic, but also the substance of the legal pursuit of the basic requirements of justice. Based on transaction cost theory, social policy theory, the prohibition of abuse of rights theory and the theory of legal interpretation of the concept of analysis, a private equity fund managers to establish the theoretical basis for civil liability.Part three private equity fund managers to study the attribution of the principle of civil liability. Civil liability that must follow certain principles of liability. Imputation principle is to identify the perpetrator, according to the civil liability is based and standards. The principle of attribution of responsibility to directly determine the composition of the elements, the burden of proof of the contents of exemptions, as well as the scope of damages. As a result of China's private equity funds have not been enacted for this purpose, many problems remain to be resolved, so the principle of determining liability has become the top priority. Combined with the actual situation of our country, through the analysis: For the private equity fund managers responsible for the breach of contract may be based on "contract law" the general provisions to bear the strict liability; responsibility for the infringement should be in the "General Principles of Civil Law" in the framework of fault liability under the burden of proof of fault, in that private fund managers to implement a fault of presumption of fault.Part four analyzes the private equity fund managers identify and assume civil liability. The article first commitment from civil obligations, the breach of civil obligations, the consequences of causality and damage to proceed with an analysis of the private equity fund managers that the civil liability; followed by a private equity fund managers on the commitment to civil liability, private equity fund managers in violation of obligations can be divided into two categories: private equity investors of the responsibility and the responsibility of the Fund property, and thus responsible for the analysis of the way, specifically including the following four ways: to confirm the transaction null and void, under the responsibility of damages, ban.The last part of a private equity fund managers to improve the content of civil liability related to the specific recommendations. The first part of civil liability for private equity fund managers have made the burden of proof on, private equity fund managers and investors there are also serious asymmetric information problems, some of the investors should bear the burden of proof from the elements of proof proof to the fund managers will help to maximize the protection of the legitimate rights and interests of investors; followed by an analysis of private equity fund managers means the realization of civil liability, civil rights and civil liability protection ultimately depends on the realization of the mechanism. In view of this, the article on the admissibility of cases, litigation and litigation under way to explore these three issues; private equity fund managers on civil liability provisions of the priority system for investors to protect their legitimate rights and interests to provide a legal means of relief; private equity fund managers in civil the ultimate responsibility of the property there is a question of protecting investors, after winning the lawsuit, there must be a corresponding property of the material to ensure that their access to compensation, or even if the investors win, get the hands of only a "white justice." In order to avoid a situation in which investors won the lawsuit, but the results can not be compensated, it is necessary to establish a private insurance system for fund managers, private equity fund managers to freeze the pay system, the establishment of private equity funds, and so a series of civil compensation system, measures to safeguard against investors can achieve the ultimate compensation; the last article from the business to determine the rules, the Government directive, the statute of limitations, the maximum compensation limits and other aspects of professional liability insurance on the private equity fund managers limit the civil liability.