| Trust, as a system for transmitting and managing property, derivesfrom equity law of the British and American legal system, then , acceptedby Japan ,Korea and Tai Wan district of China ,which belong to theCongenital legal system. After 5 times rectification in trust industry inChina ,several laws that provide relevant legal gist for the development oftrust industry have been issued, they are Trust laws,issued in April 2001;Trust investment company management rule and Trust investmentcompany's capital trust temporary management rule both issued in 2002by the People's Bank of China. In the legal relationship of trust including 3 parties : the trustee, theclient, and the beneficiary. Once the trust effectively established ,only theclient can definitely remain with the right of repeal or other engagementabout the trust files ,the rest 2 parties can't interfere with the right ofmanagement ,usage and disposal of the trust property. Obviously , trusteeis nuclear in the legal relationship of trust ,and furthermore ,the divisionof the right and duty of the trustee seems much more crucial ,not only toentitle the trustee the freedom right of decision, but also restrict the rightof the trustee in order to prohibit his injudicial action .The main rights ofthe trustee including : the right of the claim of repay charges,the right ofask, the right of get profits,and so on .And the duties of the trusteeincluding : the duty of loyalty, the duty of notice ,the duty of prudentinvestment, direct management , and so on .Nowadays ,the function ofthe trust system has changed from maintaining the value to pursuing theincrease of the property ,and trust property has substantially changedfrom tenement to financial assets ,the position of the duty of prudentinvestment gradually stands out .This paper searches the duty of prudentinvestment of the trustee from a economic and comparison operatorsviewpoint in the economic background mentioned above, and give myown suggestion to the relevant legislature in our country .Except for thepreface and epilogue ,this paper aims at defining the 4 sections as follow : The first section summarizes the trustee and his duty of prudentinvestment .On the basis of the definition of the trust legal relationship ,Icompare it with agent and contract for the benefit of a third party,revealing the hallmarks of the trust system for its flexible space andsuitability for long property management . At the same time , this section makes distinction among the duty ofprudent investment ,duty of loyalty and duty of awareness ,pointing outthat the duty of prudent investment means the trustee must take theburden to be prudent and skillful as the common prudent man does tokeep his own property .A volunteer trustee should handle his trust like aprudent merchant administrate his own business ,the trustee who haverewards should adopt a higher notice standard ,that is the trustee mustemploy a skill of notice standard which people reasonably expected aperson who has the same character or intelligence may .if the specialtrustee alleges that he has the higher skill and standard in theadvertisement, anyone should follow this standard, even more attentionsare trustees' duties in the field of trust investment . and the duty ofloyalty mainly emphasizes that the trustee can't depend on trust tofigure for benefits by himself , or keep himself in a collided conditionbetween the duty of trustee and individual advantage , which are called"the principle of forbidding self-trade " and " the principle of fair trade ",and the trustee takes charge of adducing obligations for fair and honestself-trade . the awareness duty of good administrator is a specialterminology in congenital legal system . whether the debtors have thereward or profit in obligatory right and debt separately regulates theawareness duty of good administrator or the awareness duty of dealingwith own business . once having the reward or profit , the debtorsshould assume higher awareness duty , whereas alleviate awareness dutyor misstep the responsibility. in Japan ,Korea a... |
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