Identification Of Liability Of The Trustee In The Trust Channel Business

The Trust Channel Business is a derivative of the Trust System,which is a manifestation of financial innovation and a manifestation of market freedom.For this type of business,judicial practice is active,but the discussion is not in-depth.Doctrine discussions mainly focus on the usual trust business,and the Trust Channel Business seems to be intentionally ignored.Based on the complexity of the Trust Channel Business itself and the control trends of regulatory agencies,there are inconsistencies between legislation,doctrine and judicial practice.In order to analyze this type of business in depth,it is especially necessary to regard practice as flesh and blood,and in the meantime,the theory must be regarded as the skeleton.We should strengthen the connection between the skeleton,the flesh and blood,integrate legislation and judicial practice,and strengthen the cohesion of doctrine with legislation and judicial practice.The introduction part mainly explains the problem consciousness,research value and significance,main research method,thesis frame structure,as well as the main innovations and deficiencies of the thesis.The first part mainly reveals the root cause of the difficulty in the identification of trustee’s responsibility in the Trust Channel Business between legislation and judicial practice,including the identification of the legal nature of the Trust Channel Business,the judgment of validity of the trust act,and the determination of the trustee’s obligations.The positioning of Trust Channel Business in legislation is ambiguous,and it is unclear whether it conforms to the composition of legal relationship of Trust.As a result,in the absence of clear legislative guidance,the judiciary is also vacillating or refraining from discussing the characterization of legal relationship.In order to gradually reduce the Trust Channel Business,the legislation has divided the validity of contract of the Trust Channel Business into stages.Regarding the determination of the trustee’s responsibility in the Trust Channel Business,for the internal relationship,the nature of the obligations is different due to the dispute over contractual obligations and legal obligations.In the external relationship,the trustee’s responsibility for external investors has also connection with the nature of obligations of trustee.Therefore,to clarify the issue of trustee’s responsibility in the Trust Channel Business,it is necessary to know what the legal nature and effect of such business will look like,and then follow the context to clarify the obligations when performing trust matters.The second part mainly clarifies the positioning of the Trust Channel Business in the Trust System.Comparing the Trust Channel Business with the usual Trust Business,find out the root of the problem of the Trust Channel Business compliance with the Trust Law.That is,whether the expression of intent is agreed and whether the trust property is substantially transferred.In order to reveal the point of change from the usual Trust Business to the Trust Channel Business,whether it will affect the composition of legal relationship of the Trust,to understand the essential attributes of the trust,after reviewing the independence theory of the existing trust property,the theory of the trustee’s management and disposal rights,the legal relationship theory and the power conversion theory,it is concluded that the essence of the Trust lies in the effective intention of creditor’s right act when the Trust is established,and the changes in management and disposal authority explained don’t affect the effect of the Trust.The legal relationship generated between the settlor and the trustee in the Trust Channel Business is the Trust Legal Relationship,and the provisions of the Trust Law shall be applied.The third part mainly studies the validity of trust act in the Trust Channel Business.The legal acts between the settlor and the trustee,in the level of real right or creditor’s right,don’t conform to the conspiracy and hypocrisy.Besides,the juristic act of real right don’t conform to the deviance act.For the determination of deviance of the creditor’s right act,we need to distinguish the Trust Channel Business into Non-Regulatory Evading Business and Regulatory Evading Business.The former does not belong to the deviance and its validity should be recognized.On the contrary,The latter belongs to the deviance,but it should not directly apply the provisions of the Guiding Opinions on Regulating the Asset Management Business of Financial Institutions.Instead,it should take the Trust Law as the applicable principle,with the exception of regulatory provisions turning to public order and good customs.Based on the current trend of strengthening supervision,the third section further discusses whether the contract can be converted by theory of invalid legal acts if it is determined to be invalid.When the contract is invalid,it is difficult to determine that the settlor has the effective intention of letting the trustee continue to manage the property,so the conversion path should not be accepted.The fourth part mainly divides the obligations of trustee in the internal and external dimensions in Trust Channel Business.Internally,the trustee should undertake the contractual obligations and fiduciary obligations to the settlor.In addition to the fixed types of statutory obligations,the scope of fiduciary obligations varies in the opposite direction with that of the agreed content.Among them,statutory obligations can not be excluded,and the general provision of fiduciary obligations also belongs to the category of mandatory norms,which is difficult to be excluded in principle.However,there are characteristics in the Trust Channel Business different from the usual Trust.The normative purpose of the original fiduciary obligations,the powers and responsibilities of the trustee and the consideration arrangement in the business should be recognized.And the scope of some fiduciary obligations may be excluded from the trust contract.In the external dimension,the trustee shall abide by a reasonable duty of care to the third party.The fifth part mainly discusses the responsibilities of the trustee in the Trust Channel Business.During the transition period,in terms of internal relation,the responsibilities assumed by the trustee are different when the trustee fails to perform as agreed,exceeds the scope of its own obligations,and disposes of property in violation of the original purpose of the Trust.In terms of external relation,the trustee shall bear the tort liability when actively manages the affairs inconsistent with those of in the trust contract,and violates the duty of reasonable care.After the transition period,in the Regulatory Evading Business,the cause of responsibilities of the trustee is also different compared with that in the usual trust.The former can only apply the civil law framework,while the latter should follow the consistent consideration of the Trust Law.In terms of external relation,the damage caused by the trustee to the third party can be borne by tort.