Study On The Obligations Of Private Equity Fund Managers In Limited Partnership

With the promulgation of "the new securities investment fund law" and "the measures for the registration and filing of private equity fund managers(trial)",private equity funds are more likely to emerge from the current "cold winter" of fund raising.While a limited partnership private equity fund in a short few years obtained the rapid development,with its flexible innovation,full of vitality of the advantages for the majority of investors and small and medium-sized enterprise financing and investment benefits has been made,but the lack of regulation,absence of credit mechanism,investors have different threshold,and a series of problems such as nonstandard financing process also has become an obstacle to the hinder its development.The study and regulation of the fund manager's obligation can certainly provide reliable theory and system guarantee for the above problems,and radiate to all links of fund operation from the perspective of the main body,which will be an effective way to realize its healthy and sustainable development.The research on the obligations of private equity fund managers in limited partnership is an open and diversified research topic,which can be studied from many perspectives.Based on the analysis of the limited partnership itself structure defects and adverse selection and moral hazard on the basis of the principal-agent problems,combined with the specific situation of the China's legislative,judicial,the manager in the fund set up,operation and investment in each link of some specific loyalty and diligence obligations has made the preliminary theoretical definition,and the comparative analysis of the United States on the basis of the relevant laws and regulations about faith obligations,eventually fund managers faith obligations of the regulation and puts forward the corresponding implementing building proposal.This paper is divided into four parts according to the realistic background,theoretical analysis,problem raising and problem solving ideas:The first part introduces the theoretical basis of the research on the obligations of private equity fund managers.Firstly,it briefly introduces the theory of fiduciary relationship and fiduciary duty.Secondly,it analyzes the fiduciary duty of fund managers in China,including the duty of loyalty and duty of care.The above two parts constitute the theoretical basis of fiduciary duty research.Then,it focuses on the particularity of fiduciary duty of private equity fund managers,and further demonstrates the particularity,rationality and scientificity of the topic selected in this paper,so as to distinguish it from similar studies of public funds.The second part is mainly about the current situation of the fund manager's faith obligations and development situation of China's private equity fund analysis,found that has many years of the partnership enterprise law promulgated and enacted in 2013 of the securities investment fund law,is in progress,but in the provisions of the fund manager's faith obligations are lacking.Then the author makes a general comparison and analysis of the three organizational forms and operating mechanisms of private equity funds,and concludes why this paper mainly chooses to study the theory and practical reasons of limited partnership private equity funds.The third part analyzes the reasons for the absence of fiduciary duty of fund managers in China.First,in the principal-agent relationship,moral hazard and adverse selection caused by information asymmetry may lead to the absence of fiduciary duty of fund managers.The author analyzes the causes of these two phenomena from the perspectives of the legal status of both parties and the conflict of interests.Secondly,the legislation of our country has double defects in the obligations of private fund managers,including irrationality in form and irrationality in essence.Thirdly,from the perspective of judicial comparison,there are huge problems in the judicial use of fiduciary duty in China,which mainly include: high cost of judicial intervention,subjectivity of fiduciary duty judgment standard,constraints between judicial application system and judge's discretion level.Therefore,to find out the problem is conducive to further thinking how to better construct the fiduciary duty of fund managers.The fourth part through the type of the United States limited partnership private equity fund managers faith obligations of specific analysis,through the comparison research to find a place to study is worthy of reference for our country,and put forward reasonable suggestions: first,from the legislative level analysis of the current legislation system in the United States,the financial service obligations more constraints on the basis of faith obligation,such as the United States in 1999 and 2010,"modern financial service act" and "the Wall Street reform and consumer protection act".Secondly,from the aspect of judicial analysis found that,as the case law countries,the United States on the application of the principle of faith more embodied in the judicial precedents,the subprime crisis caused by a series of financial consumer lawsuit,many are faith obligations as the basis of judicial discretion,the judge uses the principle of equity,associated with fraud theory,which makes the theory of faith obligation in the national judicial practice also played a practical effect.