| One of the popular ways to borrow from the public is to issue debt securities,usually called bonds,which is an important part of the capital market.Although bonds started relatively late in China,bond investment has been favored by many investors in recent years and has become an important direct financing method for companies.It has realized the effective allocation of market resources and is of great significance to promoting economic development.However,the success of raising funds through issuing bonds is not without costs.The frequent occurrence of major bond default events has sounded an alarm bell for bondholders,causing bond investors and financial experts to worry about and question the effectiveness of China’s bondholder protection system.A healthy and orderly bond market cannot be separated from a sound legal protection mechanism.Protecting the rights and interests of bondholders has become a key issue concerned by relevant legislation and the public.In practice,the bond trustee system introduced from abroad has not fully played its role in protecting investors’ rights and interests in China.This paper examines the legal attributes and obligation standards of the trustee under the current bond trustee system in China,and puts forward suggestions for improving the bond trustee system in China on the basis of learning from foreign systems.The article is mainly composed of introduction,text and conclusion.The text consists of four parts:Firstly,it expounds the legal connotation and characteristics of the bond trustee,including the earliest use background of the trust contract and the corporate trustee,as well as the basic meaning of the bond trustee system,and points out the connection and difference between the bond trustee system and the traditional trust theory.Secondly,it discusses the advantages and values of the bond trustee system introduced by many countries.The main advantage of constructing the bond trustee system is that it can balance the unequal position between bond investors and issuers in the capital market.Its value lies in: first,it can make up for the incompleteness of the bond contract,second,it can reduce the debt agency cost of bond investors,and third,it can solve the problem that bond holders cannot coordinate their actions.Through the analysis of major bond default cases in recent years,it is found that the bond trustee system has not played the expected effect since it was introduced into China.In practice,there have been problems such as limited functions of the trustee,negative performance of duties,obvious conflicts of interests between the parties,and the crisis of trust of bond investors on the trustee.The main reasons for the failure of the above-mentioned system include the following three aspects: first,it is not clear whether the bond trustee relationship is a trust relationship or an agency relationship;second,it is not stipulated in the legislation to resolve the conflict of interest;third,it is the lack of corresponding restraint,incentive and other supporting protection mechanisms for the provisions of the bond trustee system.Compared with the bond trustee system in the United States and Japan,in addition to the securities law,the main legislation on bond regulation in the United States is the Trust Contract Law,which stipulates the rights,obligations and responsibilities of issuers,bondholders and trustees.Japan’s "Company Law","Commercial Code" and "Secured Trust Debt Law" have provisions on the protection of bondholders by the bond trustee,and on the basis of the introduction of the bond trustee system,it has set up a new protection mode of bondholders’ meeting.In contrast,China’s trustee has deficiencies in terms of qualifications,rights and obligations.This enlightens China,first of all,to clarify the legal nature of the trustee,second,to expand the scope of the trustee’s qualifications in the system design,for example,we can consider to include banks with superior monitoring capabilities into the scope of the trustee.Finally,specify the rights and obligations of the bond trustee.In view of the problem that China’s bond trustee system cannot protect the rights and interests of bond investors,the article puts forward some targeted suggestions for improvement.First,establish the bond trustee system based on the trust legal relationship.Second,introduce the trustee’s "fiduciary duty",clarify the management standard of the trustee’s duty of loyalty and duty of care in the course of diligence,establish the trustee’s civil liability for compensation,and strengthen the effect of institutional constraints.Third,fully balance the conflict of interests of the bond trustee and improve the provisions on the qualification of the trustee.Fourth,in the existing bond organizational protection mechanism,the following modes are arranged: the bond trustee system is the main system,supplemented by the bondholder meeting system,to achieve the organic integration of the two systems,and finally achieve the goal of maximizing the protection of the rights and interests of bondholders. |
