Research On The Integration Of Obligations Of Private Fund Managers

Combing the current private law norms related to the obligations of private fund managers in China,we can find that there is a double irrationality in the form and substance of these contents: on the one hand,there are repeated provisions related to the same obligations;It's core obligations are also lacking;even if there are relevant provisions,they will not be operable in judicial practice due to over-principle or generalization.Fiduciary relationships have been developed and expanded from trusts in equitable law in the common law system.However,the trustee's obligations in the above-mentioned various relationships are only quantitatively different,and their nature has not changed,which is still reflected in the fiduciary duty typical of the trustee's obligation.Under the above premise,the omissions and shortcomings of the obligations of private fund managers in China are more obvious.According to the different organizational forms,private funds can be divided into contract type,company type,and limited partnership type.However,in addition to the Company Law and the Trust Law,which clearly stipulate this obligation in China,other fiduciary relationships have not been established in the provisions,which has caused a great deal of discretion in judicial application.And,although some normative legal documents have sub-obligations involving fiduciary duties—obligation of loyalty or duty of care,the concept of “fiduciary duty”has not actually appeared in the formal legal provisions of our country,it only exists in the context of the introduction of legislation.No matter the legal relationships between the private fund manager and the investor are,or the nature of the private fund,it can be concluded that the funds are set up through different organizational forms and invested in different place,and there are analogous applicable trustees' obligations space,which also provides the basis for unifying their obligations.As far as the former is concerned,whether it is a company or a partnership,the manager and the investor form a trustworthy relationship;when analyzing the latter,private funds and even investment funds have strong trustproperties themselves.The parent law of the private fund should have been the Trust Law.However,due to the shortcomings of the text of the Trust Law in China and the conceptual deviations in the transplantation of different legal systems,There are still some obstacles to applying it to private fund managers.However,the solution of the problem still needs to be based on the provisions.After the use of legal interpretation method to restructure the text of the Trust Law and expand the scope of "securities investment",it can achieve the integration of the obligations of private fund managers,thereby forming a systematic management.The first part introduces the chaos in China's private fund industry.According to the information released by the relevant regulatory authorities,the manager has numerous illegal acts.In combination with the author's search of related cases,the results of investors' failure to bear the investment are inconsistent with their original intention that civil rights should be remedied.There are double deficiencies in the obligation of the provisions.The second part briefly summarizes the manager's fiduciary obligations under different organizational forms.Combining the three legal forms of private funds:corporate,contractual,and partnership,it sorts out its managers under general law and special law.Their respective obligations,and analyzed the deficiencies of the relevant regulations,and concluded that the obligations of the manager should be unified,and pave the way for the integration of the trustee's obligations with the trustee's obligations below.The third part puts forward opinions on whether the obligations of private fund managers can be unified,that is,the basis of their integration.In view of the fiduciary nature of the relationship between investors and managers,the fiduciary relationship and fiduciary obligations have become the root and core of the manager's obligations.At the same time,it is further pointed out that the fiduciary relationships are originated from a trust relationship.Therefore,it is concluded that the fiduciary duties of the manager can be based on the unification of the fiduciary duties of the trustee,and the possible disadvantages of applying the trust theory to corporate and partnership private funds can be overcome.The fourth part is mainly to put forward corresponding countermeasures to the problem.On the basis of clarifying the nature of the fiduciary duty of the manager,a positive reply was made to the necessity of establishing the fiduciary duty rule.In addition,by restructuring the content of the text of the Trust Law in China,the duty of the trustee by analogy can be applied in corporate and limited partnership private funds.Through the above analogy,the different norms in the existing normative legal documents can be coordinated,and the conflicts between different rules can be alleviated.At the same time,the gaps can be filled,and the form of the fiduciary obligations of private fund managers in China can be eliminated.