| The bond trustee system is a system with great value in the field of investor protection.In 2014,the first domestic bond default case broke the "rigid payment" of the bond market,making the protection of bond investors’ interests a legislative and practical practice.focus issue.In the context of the promulgation of the "Securities Law of the People’s Republic of China" and other relevant laws and regulations implemented in 2020,the bond trustee system is facing some new difficulties while solving the old problems,which hinders the system from being better in the bond market.to function.This paper pays attention to the lack of regulation on the personnel responsibility of bond trustees in the current legislation,which leads to insufficient punishment for the trustee’s illegal behavior,and reveals the theoretical predicament of the bond trustee system.Therefore,from the perspective of the duty of diligence,this paper studies the civil liability of the bond trustee for breaching this obligation,and strives to clarify the nature and specific rules of civil liability,so as to better motivate the bond trustee system to protect the interests of investors institutional value.In addition to the introduction,this thesis is divided into four chapters:The first chapter firstly points out the realistic predicament of our country’s corporate bond trustee’s responsibility.With the continuous improvement of the bond trustee system through legislation,the legal liability of the trustee has increased the civil compensation liability for breach of the duty of diligence on the basis of the original administrative liability.However,because the relevant legal provisions are not specific enough,the realization of the civil responsibility of the entrusted administrator is also faced with some problems,mainly including the imbalance of the civil responsibility arrangement,the unclear nature of the personal responsibility of the bond entrusted administrator,and the insufficient rules for the assumption of civil responsibility.The second chapter defines the basis for the bond trustee to assume civil liability.The law endows the bond trustee with the duty of diligence,which requires the trustee to perform their duties actively,prudently and sincerely,and shall not be slack in performing their duties.However,we still need to clarify the meaning of the duty of diligence and the specific performance standards of the duty of diligence of the trustee.Then,the specific duties of the bond trustee are expounded.Under the current legislation,the duties of the bond trustee are relatively clear,which can be divided into management duties under general circumstances and disposal duties after a bond default occurs or is expected to occur.The third chapter analyzes the nature of the bond trustee’s civil liability,and should define the trustee’s civil liability for breaching the duty of diligence as tort liability.First of all,by examining the foreign regulations on the legal liability of the bond trustee,it can be seen that the current foreign legislation basically stipulates that if the corporate bond trustee violates the legal provisions or the agreement to infringe the rights and interests of the bondholders,the bondholders need to be punished.make compensation.Secondly,from the perspective of legal basis,the duty of diligence should be a legal obligation in theory,and if the bond trustee violates this obligation,it should constitute a tort.Moreover,in practice,courts often identify the nature of the liability of the actor for breaching the duty of diligence as tort liability.The fourth chapter mainly analyzes the improvement of the system of bond trustee’s personnel responsibility.First of all,attention should be paid to the role of civil liability in entrusted management,and the effectiveness of civil liability norms should be improved.Secondly,it is necessary to establish that the bond trustee should bear the tort liability,and clarify the elements for the establishment of the trustee’s tort liability,namely the trustee’s tortious behavior,the occurrence of damage to the rights and interests of the bondholders,the establishment of the causal relationship between the two,and the trusteeship.Manager’s subjective fault elements.Thirdly,the rules for assuming the civil responsibility of the entrusted administrators should be unified.In the principle of attribution,the presumption of fault responsibility should be applied,and the trustee shall bear the burden of proof that it is not at fault;in terms of liability,the trustee and the issuer shall be jointly and severally liable for the losses of bondholders.The joint and several liability of the bond trustee is strictly distinguished from that of the underwriters;the trustee’s responsibility is mainly to compensate the losses suffered by the bondholders;finally,the liability for the bond trustee should be increased.Reasons for exemption,such as the behavior of the bond trustee in full accordance with the decision of the bondholders’ meeting;the liability for compensation that the bondholders are exempted from in the form of the trusteeship agreement,etc. |
