Research On Trustee’s Responsibility In Trust Channel Business

Trust channel business is a business type developed under the specific financial background in China.It is a business type carried out with trust companies as channels.The guiding business on standardizing the asset management business of financial institutions in 2018 comprehensively prohibits "channel services to avoid regulatory requirements such as investment scope and leverage constraints",and the trust channel business has entered the era of "clearing everything",At the same time,the minutes of the civil and commercial trial work meeting of the national courts in2019 also guide the judgment ideas on the nature of channel business and the determination of contract effectiveness,but did not provide for the division of responsibilities between the trust parties.It should be noted that with the reduction of stock business,a large number of channel business disputes emerged,including many cases of infringement of the rights and interests of external investors.Based on this background,on the basis of clarifying the concept and particularity of trust channel business,this paper deeply analyzes how to identify the internal responsibility of trust from the perspective of fiduciary duty,and how to deal with the "new disputes" in which external investors require trust companies to bear tort liability from the perspective of Prudential duty,It provides a reference for how to solve the disputes arising from the exit of channel business,which is divided into four parts:The first part first defines the concept of trust channel business,which should belong to a kind of transaction management trust.It classifies its business types from the perspective of initiator and leader,and analyzes its basic structure;Then it explains the development of trust channel business in detail by exploring the causes of the development of trust channel business and the regulatory trends and specific provisions before and after the new asset management regulations;Finally,it analyzes the characteristics of trust channel business,which lays the foundation for the following discussion on the basic legal relationship and the relationship between the rights and obligations of the parties.The second part analyzes the identification of basic legal relationship in trust channel business.The internal legal relationship is divided into "entrustment theory" and "trust theory".The "entrustment theory" is mainly based on the "initiative" requirement of "management,operation and disposal" of trust in Article 2 of the trust law;"Trust theory" believes that although the manager in the trust channel business does not control the handling of trust affairs and only undertakes transactional management,it still meets the minimum requirement of "independence of trust property".The author analyzes the effectiveness of the trust contract and believes that after the end of the transition period,corresponding laws,administrative regulations or relevant judicial interpretations should still be formulated to stipulate the effectiveness of the trust channel business contract.The relationship between the third-party investment consultant,the client and the trustee also needs to be paid attention to.A typical case is introduced in this part for analysis,because the investment consultant is not a party to the trust contract,but it is the subject with actual decision-making power on the handling of the trust business,and the investment consultant is usually selected by the client.Whether the three parties constitute "sub entrustment" in Article 30 of the trust law Whether it constitutes a substantive trust relationship is analyzed.The author believes that it is difficult to identify the "double trust" under the background of the current trust law,and the principal-agent relationship should be taken as the basic identification principle.However,considering that the trustee does not have autonomy on sub entrustment,it should be different from ordinary sub entrustment in the identification of responsibility.The third part is to clarify the legal basis of the trustee’s agreed obligations,so as to determine the scope of the trustee’s internal fiduciary obligations.Although the parties can reduce part of the fiduciary duty of the trustee by the agreed way,and in practice,the court also adheres to the principle of "respecting autonomy of will" in the process of judgment,the trustee cannot refuse to bear the responsibility on the grounds of only undertaking transactional management.The effect of exclusion should fully consider the nature of the obligation,the specific content of the excluded personal management obligation,whether it involves the standard of duty of care,etc,So as to clarify the responsibilities and obligations of trust parties in trust disputes.The fourth part mainly studies the externality of the trustee’s liability in the trust channel business,that is,the situation where external investors request it to bear tort liability.This part takes the "Hua’ao trust case",the first case in China to judge the channel party to bear external tort liability,as the starting point to study the application of prudent operation rules in such disputes.The prudent obligation of the trust company is the due meaning of a financial institution,Although the agreed exclusion effect of fiduciary obligation is recognized under corresponding circumstances,whether it is effective for the third party should consider whether it affects the appearance of the transaction.The Prudential obligation has different connotation from the duty of care in the trust obligation,and the performance of this obligation is not affected by the agreed exclusion of the parties.Secondly,the trustee’s liability is based on the trustee’s fault.It is difficult to identify the fault and causality.We should consider a variety of factors in combination with the specific situation of the case.Generally,the trustee is not the main party to the infringement,and its tort liability should be based on supplementary liability.The scope of liability should take into account the fault degree of the parties to the trust and external investors.Strengthening the supervision of trust channel business and preventing it from being used as a means to evade supervision is the due meaning of strengthening financial supervision and reducing the risk of the financial system.Clarifying the internal and external responsibilities of the trustee through the above analysis is conducive to the settlement of disputes in the process of reducing the pressure of trust channel business.