Legal Integration Of Fiduciary Duty Of Trustee In Asset Management Business

The business of asset management conforms to the standard transaction paradigm of entrusted person’s financial management.Only because of the different subjects of financial institutions,their basic legal relations are separated and their fiduciary obligations are subjected to different standards,which shows the dual rationality deficiency of normative form and obligation essence.Guiding Opinions for Regulating Asset Management Business of Financial Institutions conduct uniform supervision based on financial products,guided the asset management product back to its essence,and confirmed the fiduciary duty of the trustee.The Guiding Opinions have taken a crucial step towards unifying fiduciary obligations.It is still far from its target which apply the form of law to unify the fiduciary status inherent in the system of obligations applicable repeatedly beyond the subcategories of asset management.Fiduciary duty can unify the regulatory rules of various businesses,solve the problem that there is no superior law in asset management business,and alleviate the difficulty of applying the fiduciary duty rule in a judicial trial.The problem of whether the asset management business is regulated by single superior law or compound superior law is essentially that the underlying legal relationship is unclear.We don’t know if the underlying legal relationship is a trust relationship,a principal-agent relationship or some other legal relationship.Influenced by the global trend of weakening law,the legal nature of fiduciary duty shows the ambiguity between contractual obligation and legal obligation.The content of fiduciary duty fluctuates between dualism and pluralism.As a product of financial society,asset management products are more suitable for fiduciary regulation than for contract regulation of commodity society.The generating logic of fiduciary relationship includes:（1）Financial institutions promise to deal with affairs for the best interests of investors;（2）The investor delivers the trust property on trust;（3）Financial institutions have discretion over entrusted property;（4）Investors and financial institutions are not on equal footing.Further verification of transaction structure shows that no matter the name of financial institutions and products carrying out asset management business,asset management products all conform to the fiduciary relationship framework,and the entrusted managers all assume fiduciary obligations to investors.Fiduciary duty is purely legal duty.Setting a legal minimum obligation standard for trustee is more consistent with China’s asset management practice and civil law tradition.Fiduciary duty is dependent on the fiduciary relationship and comes into being since the investor delivers property to the financial institution.Abiding by contractual obligations is a contractual obligation,so it cannot be regarded as fiduciary obligations.Due to the low standard of fiduciary duty,there is no need to list it separately.The obligation of appropriateness in the raising stage of asset management products is not fiduciary obligation,but the obligation of appropriateness in the investment and management stage belongs to the duty of diligence.As an extension of financial consumers’ right to education,information disclosure obligation has independent value.The duty of information disclosure should be paralleled with the duty of loyalty and diligence.Financial institutions are diligent in complying with regulations.The unification of Financial Fiduciary Law or Financial Consumer Protection Law requires the extraction of fiduciary essence across more financial products with large differences and complex structures,which is difficult to achieve results in a short term.Based on the above reasons,we give up the single upper legal integration path.The expansion of the concept of "security" in the Securities Law has essentially broken the potential monopoly of the Trust law.In the current stage,it can form the phased results of the combination of compound superior method.Three measures should be taken in the path of integration:（1）Expand the connotation of commercial trust in Trust law;（2）Use the Securities Law to regulate the public offering and circulation of products;（3）Use the Securities Investment Fund Law to enumerate the fiduciary obligations of private fund managers.In the integration paradigm,the duty of loyalty should return to the criterion of maximum benefit of beneficiary.The duty of loyalty is not a negative duty.Limited conflicts of interest should be allowed.The meaning of the fair treatment criterion should be broadened.The duty of care should refine the fiduciary best performance rules,introduce the multiple portfolio investment theory,and refine the frequency appropriate rules.The obligation of information disclosure shall integrate the specific requirements of information disclosure and establish the accompanying obligation of explanation.