| This thesis is composed of preface, main-body and conclusion, and the main-body is divided into five parts. From the primary theory, this thesis analyzes the characteristics and juristic basis of the trust, discusses the organizational structure of the fund-in-trust of China, and how to protect the interest of the fund holders from the fund manager, the custodian trustee and the fund holder.The preface introduces the background of the research, the status in quo and the shortcoming of the domestic and overseas research, the structure, emphasis and difficulty of the research, the innovations and the disadvantages of this thesis.Chapter One discusses the characteristics and the institution structure of the fund-in-trust. It first analyzes the characteristics of the fund-in-trust, and concludes that the fund-in-trust is a kind of trust in nature, a special trust. The author defines the trust and points out that the primary juristic base of trust is the separation of the owner of rights and the interest, the independence of the fiduciary property, the limitation of the fiduciary obligation and the continuum of the trust management. This chapter then suggests the legislation mode of organizational structure of fund-in-trust, analyzes the status in Eng., Jap. and German, and discusses the influence and the application for China.Chapter Two explores the juristic basis and status in quo of the fund-in-trust's organizational structure in China. Firstly, this chapter studies the function and juristic basis of the fund-in-trust's organizational structure. The author proposes the fund-in-trust's organizational structure aims to nail down the relation of the parties,promote the efficiency of the manage of fund-in-trust, balance the interest of the parties, and realize the target of the equity. This thesis holds that the fund-in-trust's organizational structure in China is established on the united theory and the joint trustee theory. Secondly, this thesis makes a research on the status in quo of the fund-in-trust's organizational structure in China and discusses the fund-in-trust's organizational structure in the temporary regulation and law of fund-in-trust in bonds.Chapter Three focuses on protecting the interest of the fund holder from the perspective of the fund manager. Firstly, this thesis studies the juristic status and the qualification of the fund manager. (1) Laws in England and American hold the argument that the fund manager is not the client, nor is the trustee, but an independent relier. On the other side, Japan holds that the fund manager is the trustee. We compare and refer to both of these modes, and adopt the joint trustee theory. (2) From the angles of the qualification of the doer, the standard of the assets, personnel standard and other sides, this thesis brings forward the qualification of the fund manager. Secondly, this thesis analyzes the rights and the obligation of the fund manager, and points out that the obligation is the fiduciary duty and the fiduciary duty includes the duty of care and duty of loyalty. Thirdly, this thesis studies the shortcoming of regulation and the improved measures refer to the fund manager. The author compares the fiduciary duty and the principle of good faith, and argues that the principle of good faith can't replace the fiduciary duty of the fund manager.Chapter Four aims to discuss the issue of protecting the interest of the fund holder from the angle of the custodian trustee. Firstly, this thesis analyzes the juristic status and the qualification of the custodian trustee. British and Japanese jurists hold that the custodian trustee is the trustee of the fund holder, while American jurists argue that the custodian trustee is the keeper, but in China the custodian trustee and the fund manager are regarded as the joint trustee. Secondly, this thesis studies the rights and the obligation of the custodian trustee. The obligation of the custodian trustee includes keeping the fiduciary property, doing what the fund manager ask them to do, and m... |
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