Research On Private Fund Managers’ Fiduciary Duty

With the development of economy,China’s investment mode has become diversified,and fund investment has become popular in China.The private fund has gradually developed from the initial illegal state into one of the legal and legal investment methods.However,the development of the law has both the transcendence and the hysteresis.With the development of the private fund,the deficiencies in the fiduciary duty as the core of the legal relationship of the private equity fund begin to be highlighted.This paper,based on the theoretical basis of the fiduciary duty of the private fund manager,divides the article into six chapters and carries out legal research on the relevant contents of this obligation.The first chapter is the introduction of this article.In this part of the selected topic background and significance of this article make a analysis,and review our country and foreign private equity fund managers fiduciary obligations related content,analyze existing research results,through value calculation method,legal comparison method,literature research and the research methods of this article.The main content of chapter two is to define the general problem of the trustee’s obligation of the private fund manager.Private equity refers to the investment funds raised from qualified investors in a non-public manner in China.At present,the identification of private fund managers in the world is more complex,and the identity of the private fund managers is considered to be overlapping,which is both a private fund raiser and a manager.The behavior of the trustee runs through the investment and financial behavior,so the trustee should strictly observe the professional ethics and abide by the laws and regulations externally.The trustee is the main part of the private equity operations,to clarify its legal status,analysis the difference between private equity funds and public offering funds,and based on this,clarify specification private equity fund managers are important content of fiduciary duty.The third chapter mainly describes the main content of the trustee obligation of the private fund manager,and the relief measures that breach the fiduciary duty.The main content of this obligation is faithful and diligent.About the core of the duty of loyalty is the requirement that the trustee may not seek personal gain using its own advantage,banned the trustee deals,the trustee shall and investors a fair deal,or the use of the trustee,conflicts of interest mechanism and competition behavior,etc.The duty of diligence is mainly reflected in the pre-investment accounting cost,the investment in fairness and efficiency,honesty and credit to the fiduciary affairs,and personal management obligations.Once the trustee,in violation of the obligation,the perspective of investor rights relief ways mainly have the following three aspects: the first is to require the trustee liable for damages,possible words as far as possible to restore to its original state responsibility,the other by laws and regulations or the two sides agreed to the beneficiary on the trustee behavior claim is prohibited.The fourth chapter is the analysis and evaluation of the fiduciary duty of the trustee and its breach of duty in the United States and Japan.The United States has a duty of loyalty and diligence to fund trustee obligations,which mainly stipulates that the system is complete in securities law,investment law and consumer protection law.The relief measures restrict the rights of the trustee,stipulate the system of liability for damages and grant investors the right to follow the system.The content of this obligation in Japan is basically stipulated in the securities law and trust law.Specific content show is loyal,pay attention to the two obligations,remedies for breach of fiduciary duty is: request the trustee to take a loss to fill responsibility and restorable responsibility presumption,the losses caused by the breach of duty of loyalty in order to make up loss of investors,to give investors the trustee exercise the right of claim is prohibited.The fifth chapter mainly discusses the legal provisions on the obligations of the trustee of the fund in China,and analyzes the legislative status and the deficiencies of the legislation of the private equity fiduciary duty in China.Since there is no specific legislation on this obligation,it shows that the regulations are not centralized.They are scattered in the civil and commercial legislation of our country,and there is no specific and detailed stipulation about the duty of loyalty and diligence.It can be seen that the deficiency lies in the ambiguity of the concept and content of duty of duty,duty of care,etc.It is very easy for legislation to be dispersed,which leads to the duplication of legislation.In addition,when the trustee violates the fiduciary duty,the provisions on the investor relief mechanism are not perfect.The sixth chapter is on the basis of the research and analysis of the first five chapters.According to the current situation and deficiencies of the legislation of the trustee of private fund in China,some Suggestions are put forward.Concrete including the specific content of the fine collect alms fund manager’s fiduciary duty,through specific civil liability and compensation scheme improve the supervision mechanism,build perfect supervision system,the method of fund holders to organize and increase the fund managers breach of fiduciary duty after bear civil responsibilities,overall generalization of private equity fund trustee obligation proposal,looking forward to their fiduciary obligations content gradually improve.