Research On The Legal Liability Of Trustees In Trust Channel Busines

In recent years,channel business disputes have occurred frequently,and the accumulated systemic financial risks have also accumulated,which has attracted the attention of relevant departments.In 2018,the "Guiding Opinions on Regulating the Asset Management Business of Financial Institutions" was issued,and a transition period was set in accordance with the principle of "breaking the old and the new",and the legal effect of the existing channel business was recognized.In 2019,the Supreme People’s Court issued the "Minutes of the National Courts’ Civil and Commercial Judgment Work Conference",which provided adjudication guidelines for channel business cases,responded to the "new and old" principle of the "New Asset Management Regulations",and affirmed the laws of the existing channel business.It further pointed out that "the relationship of rights and obligations between the settlor and the trustee shall be determined according to the stipulations in the trust documents".These two normative documents have provided adjudication guidelines for the determination of legal validity of channel business,and subsequent judicial precedents have not raised disputes on validity.However,these two normative documents did not respond to the following disputes that often arise in channel business practice: first,which obligations of the trustee can be excluded from the trust documents,the degree of reduction and exemption,and whether there are statutory mandatory obligations that cannot be excluded by agreement.;Second,the two normative documents both focus on the internal rights and obligations between the client and the trustee,while in the channel business practice,there is often a nested form of “asset management plan &trust plan”or the client is a public In the case where the wealth management funds formed by investors purchasing wealth management products are used as trust funds to invest in trust projects,when the trust funds are damaged,what external responsibilities should the trustee assume,that is,to the investors of the asset management plan or the public investors of the wealth management funds What kind of responsibility to take,and to what extent to take responsibility.Taking this as the background,the paper firstly clarifies the concept of channel trust and summarizes two channel modes of trust business according to the trust business practice,then analyzes the basic legal relationship under the two channel trust modes respectively and summarizes the two focus of liability disputes in the current channel business: one is the rationality and degree of relief of the fiduciary duty of the trustee,the other is the the principle of attribution of tort liability and the identification of constituent elements.Next,the two liability disputes are analyzed in detail from the perspective of trust law combined with domestic and foreign legal research and judicial practice precedents.Finally,some perfect suggestions for the legal liability definition of the trust channel are put forward from the aspects of clarifying the trustee’s liability boundary.The article is divided into five quarters:The first part first defines and explains the channel trusts discussed in this paper,clarifying the concepts and differences between channel trusts and transactional management trusts,evading regulatory trusts and transfer responsibility trusts,and indicating that this paper believes that channel trusts have both transfer duties and circumvention of regulation.Then,combined with the data report released by the official website of China Trustee Association,the development status of the trust channel business is expounded: the volume of the channel business still accounts for a large proportion of the trust business.Two common structures of the channel business are summarized based on the trust practice.The second part is to analyze the identification of the nature of the basic legal relationship of the channel trust.In this part,the paper analyzes the basic legal relationship between the parties under the two channel business structures.The basic relationship disputes under the typical construction mode mainly exist in the legal relationship between the client(commercial bank)and the trustee(trust company).In this regard,the author analyzes the two theories of "entrustment theory" and "trust theory" respectively,and finds that the root cause of the controversy is that Chinese“Trust Law" does not specify the types of statutory trusts clearly,and fails to respond to the development of trust practice in a timely manner.This paper believes that the channel trust is an innovative product of the commercialization of the trust system.As long as these innovative changes do not depart from the essence of the trust,that is,the independence of the trust property can be achieved to a minimum extent,the legal relationship of the trust should be recognized;and its validity should be recognized.It should also be based on this and judged within the scope of trust law.Under the atypical channel business model,the client(public investor)establishes a trust relationship with the trustee(trust company),the trustee establishes a principal-agent relationship with the invisible project leader(commercial bank),while the client establishes a trust relationship with the invisible project leader In this regard,this article refers to the "dual trust" theory put forward by relevant scholars,and believes that the essence should be seen through the phenomenon,and the trustee and the leader of the invisible project should be based on the sub-entrustment relationship of the trust.The project leader constitutes a "dual trust" legal relationship.In this way,after the above-mentioned legal relationship is clearly defined,the author summarizes two major liability disputes in the current channel business: the reduction and exemption of the trustee’s fiduciary obligations and the trustee’s tort liability for social investors.The third part is an analysis of whether the fiduciary obligation can be reduced or exempted from the first point of contention and the degree of relief.This section first analyzes the obligation system of trustees under traditional trusts,and clarifies the specific obligations of fiduciary obligations: active affairs management obligations such as loyalty obligations,diligence obligations,and personal management obligations,and transactional management obligations such as records,reports,and confidentiality.obligation.Then,it analyzes the rationality of the reduction and exemption of fiduciary obligations of the channel business and the diligence of each specific obligation based on the trust legal systems of the United Kingdom,Japan,the United States and relevant judicial precedents in China.It is concluded that the principled obligations and loyalty obligations of the trustee in the channel trust belong to the non-derogable statutory obligations under the Trust Law.The duty of diligence and the obligation of personal management can be reduced or exempted to a certain extent,but the trustee still needs to undertake legal compliance,the duty of review and due diligence.The fourth part is an analysis of the external liabilities of the investors in the underlying asset management plan outside the trust relationship of the channel trustee,which is the third focus of the dispute.This part first analyzes the application of the law on the trustee’s external liability in light of typical cases such as the "Huaao Trust Case",and believes that the application of tort liability provisions is more important than article 37,paragraph 2 of the current Trust Law in China,and then elaborates on the principle of tort liability borne by the trustee to the public investor and the constituent elements.In this regard,the author believes that the liability of the trustee should follow the principle of general fault liability,and the criterion of fault should be that the trustee should handle the trust affairs as the ordinary businessman should handle his own affairs with caution.The fifth part is from the perspective of maintaining the development of the financial market and the stability of the financial order,and gives suggestions for repositioning trusts,improving the trustee’s responsibility in the channel trust business,and introducing the third party’s responsibility,in order to help our country.Provide assistance in solving the problems of abnormal development of the trust industry and the frequent occurrence of crises in the channel trust business.