Research On The Fiduciary Duty Of Guardians In Our Country

China's regulations on the duties of guardian are relatively vague,and the ward is easy to be infringed by the guardian.The fiduciary duty of guardian originated from the Anglo-American legal system plays an important role in restraining the discretion of guardian,preventing the opportunistic behaviors of guardian,and safeguarding the best interests of the ward.It can be used for reference by China and perfect the system of obligations of guardian in China.The first chapter of this article mainly summarizes the guardian's fiduciary duty.First,it introduces the concept of the guardian's fiduciary duty,the relationship and difference between the guardian's fiduciary duty and the principle of good faith,so as to clarify the two issues of "what is the guardian's fiduciary duty" and "why can fiduciary duty be stipulated in our country's guardianship system";The second is to introduce the nature,characteristics and functions of guardian's fiduciary duty.The third is to introduce the main contents of the guardian's fiduciary duty.The second chapter of this article mainly analyzes the theoretical basis,current situation and problems of guardian's fiduciary duty in our country.First of all,from the reliance theory,power and discretion theory,and Inequality theory about fiduciary duty,it proves that guardians in our country should undertake fiduciary duty.Secondly,through sorting out the legal texts of our country,it is concluded that the fiduciary duty of the guardian stipulated in our country's current laws is mainly the provision on disposing the property of the ward and the provision on respecting the will of the ward,both of which are the contents of the fiduciary duty.Finally,combined with legal texts,documents and cases,it is pointed out that the guardian's fiduciary duty in our country still has some problems,such as the lack of the content and standard of the guardian's duty of care,the imperfection of the specific content of the guardian's fiduciary duty,the way the guardian bears the responsibility for violating the fiduciary duty and the imperfection of the burden of proof.The third chapter of this article mainly combines the relevant provisions of thefiduciary duty of guardians in the United States,and puts forward suggestions to perfect the fiduciary duty of guardian in our country.First of all,the guardian's duty of care and the standard of duty of care should be clearly defined.Secondly,we should improve the content of the duty of loyalty of guardian in our country,including prohibiting guardian from making self-transactions,prohibiting guardian from using the convenience of performing their duties to seek benefits,prohibiting guardian and ward hotchpot,and clearly respecting the applicable order of the duty of will of ward and the principle of best interests.Finally,we should perfect the responsibility of the guardian for violating the fiduciary duty,including perfecting the way the guardian bears the responsibility for violating the fiduciary duty,and establishing the inversion rule of the burden of proof for the guardian violating the fiduciary duty.