Fund Managers And Trust Obligations Of The Legal Analysis

Through a series of clauses, an investment fund law has defined and strengthens the obligation and responsibility of fund manager for investor protection, and only by so doing can better develop fund industry. Be a kind of ensemble-investment tool, investment fund is uncertain investors' contributions which be managed and operated by professional fund manager, both investment income and investment risk are shared by investors.The operation, which has externalization of enterprise governance structure, is superior to company in flexibility, meanwhile, the inconsistency right and obligation of securities investment fund manager, information asymmetry exists between investment fund manager and fund holder. Such legal status of fund manager easily leads to fund manager's moral risk. So, the judgment to fiduciary duty of the securities fund's supervisor need objectification and system evaluation standard. The trust law,securities law and investment fund law of our country deals with fiduciary duty of the securities fund's supervisor in principle, but that's not enough for the operative practice. Given this, the theory of duty of care standard of Anglo-American law system and good faith administrator standard of continental law system. Combining oversea advance experiences with domestic actuality and combing fund managers' fiduciary duty, we finally give some advice for refining and perfect our fiduciary duty system.The whole thesis has divided into three parts as follow:First part: summarization of the fiduciary duty of fund manager. This part has mainly instructed the concept, properties, basis and research meaning. Firstly, fund manager's fiduciary duty contains duty of care and duty of locality; duty of locality belongs to moral category and duty of care belongs to specialty skill requirements, both of which form the core of obligation system of fund manager. Secondly, from concept analysis mathematics, fiduciary duty, which is moral obligation, should be beginning with subject, object, service object, is typical moral-law duty gasification. Thirdly, from effect source to see the basis of fund manager's fiduciary duty should contain formality contract, about fund intention, fund property and deterministic holder. The legal basis of fund manager' fiduciary duty are equity law, formulation law and the principle of good faith, and there is also moral hazard problem in fundoperation.Second part: the violation of fund managers' fiduciary duty and corresponding legal regulation. This section divides the fund managers' fiduciary duty into two parts: duty of loyalty and duty of care. The duty of care contains two parts-attention and skill, and then optimization of attention duty standard is given. Duty of locality consists of two aspects: tooley prohibition and conflict regulation. The prohibition of tooleys' standard experienced a process from absolute prohibition to relative alleviation, and then it consists of self-transaction regulation and fair-transaction regulation. This part on the one hand orientates subjective essentials and objective essentials of violation of fiduciary duty, and on the other hand according to related foreign law and legislation style so as to perfect our fund legislation.Third part: the current situation of our legislation about fiduciary duty and also is the emphasis of the whole text. It includes the existing law of fund management' fiduciary duty and based on the trust law,securities law and investment fund law of our country. Author designated the existing law doesn't definite the law relationship of fund party so that investor' rights and interests cannot be taken carefully. The future legislation should make clear that the fiduciary duty is the principle of fund manager 's duty. Investment fund law has widened the category of custodians' right, but there is little word about fiduciary duty of fund manager. So firstly, author suggests it should give concrete detailed regulations to the abstract legislation. Secondly, to duty of care, fund manager 'performance evaluation and calculation of management fee should be established under the information hyalinization; to duty of loyalty, monitoring mechanism and power balance system should be perfected. Finally, the civil liability and relief of violation the fiduciary duty should be established.