The Research Of Trustee's Duty Of Care In China

Commercial trust occupies a dominant position in China's trust market,with broad prospects,and the need to preserve and increase the trust's economic value makes the trustee's duty of care more important.Although the contents of the trustee's duty of care in China are gradually enriched by the regulations of the regulatory authorities,their contents are still lacking in specificity and systematicness.In the practice of trust,the judgment criteria of the trustee's management of the trust and the disciplinary obligations are still too abstract,still far from the requirements of practice.Then through foreign experience(especially the US prudent investor rules),solutions are proposed on how the responsibility system to be clear and to fully utilize the trustee's management skill in the use of trust property.At the same time,the trust belongs to one of the ways of asset management.The body of the text is divided into five parts.At the first part,the introduction defines the definition and origin of the trust.And changes in the pursuit of social wealth and value,the trust gradually evolved from a transfer type to a managed type,the professional competence of the trustee is highlighted.The second part is an overview of the trustee's cautious obligations:the trust trustee is at the core of the trust relationship.In order to prevent the trustee from abusing the rights,the trustee's behavior is regulated through loyalty and cautious obligations.With the transformation of trust business,cautious obligations have become the focus of national legislation.The Anglo-American legal system gradually clarified the attention,skills and prudential requirements of cautious obligations through the accumulation of precedents;the civil law system regulates the duty of care by applying the duty of care of good managers.China has formed a basic framework for general requirements and specific rules through the development of one law and three regulations.It has shown certain positive effects in administrative supervision and judicial trials.However,the channel business and rigid redemption have made China's cautious obligations still exist.Controversy.The third part specifically analyzes the shortcomings of the trustee's cautious obligations in China:(1)The content of the cautious obligation stays at the overall level and does not play its due role in the judicial case;(2)The nature of the liability for breach of the duty of care and the scope of compensation It is not clear;(3)The client's existing direct adjustment right inhibits the trustee's ability to manage,use,and dispose of the trust property,and does not meet the development trend of the trustee's cautious obligations.The abstraction and uncertainty of legal norms make the trustee lack clear guidelines for action,and the beneficiaries'interests are placed in a situation where they cannot be reasonably expected and effectively guaranteed.The development of trust practice urgently requires more refined legal rules.The fourth part puts forward the perfect suggestions for the trustee's cautious obligation:(1)Incorporate the modern portfolio theory into the norms of investment behavior and management behavior by referring to the US prudent investor regulation;(2)Violation of the cautious obligation should apply the fault The presumption principle should be clear about the scope of compensation,including not only direct losses but also indirect losses,and should allow for excuses.(3)The principal should exercise the right to adjust,and should increase the conditions and restrictions.Whether it is reasonable to judge through the pre-judicial process.The fifth part is the conclusion that it is proposed that under the background of large capital management,the trustee's cautious duty has more room for growth and significance.