Study On The System Of Trustee's Duty Of Care

As a legal system,trust originated from the Anglo-American law system and took root in the process of global legal transplantation.China officially promulgated the trust law in 2001 to transplant the trust system.However,the core link of the trust relationship in the trust law of our country--the obligation of the trustee to handle the trust affairs cautiously has prominent problems.The principle and abstract provisions,namely "prudent and effective management",need to further explain the limited standards of duty of care.From functionalism,historicism,the point of view of system theory and system evolution theory,the thesis will analyze the rules of the trust system of a fiduciary duty of care,and the analysis method of economics,sociology paradigm will be applied to explore the duty of care system itself and the deep reasons in the evolution of system,in order to build system suitable to China's economic and cultural traditions,and put forward Suggestions on the perfection of the current system of duty of care in China.Chapter one is about the function of duty of care.The generation of duty of care has its profound economic root,which is to avoid bilateral adverse selection of parties,and minimize the transaction cost in the process of trust transaction,including the cost of making prior agreement,the application of rules in the event,and the cost of relieving fault afterwards.The trust system aims at increasing the property benefit and reducing the conflict of interest,in order to strengthen the effective management idea,impose the negligence responsibility and the good faith idea as the path choice.The interest protection function of the trust system is reflected in the duty of care system,which is to give the trustee the necessary scope of discretion and tolerate the loss caused by rational behavior by means of negative restriction and positive promotion,meanwhile prevent the trustee from laziness,inaction and irrational decision-making,and reconcile the interest conflict with the premise of good faith.Chapter two is about the framework of duty of care.The trustee attention system in our country can be divided into different logic lines,but it should be distinguished into one logic line in the same law.It can be expressed as the duty of diligence and the duty of effective management of active action.The obligations distinguished by business links can be expressed as the duty of care in personal management,the duty of care in separate management and the duty of care in rational decision-making,which are also the specific application fields of the duty of care.The criterion of duty architecture,which is distinguished by the elements of rational behavior,is care,skill and prudence.Chapter three is the evolution of duty of care.Kuhn's paradigm theory holds the idea that the accumulation of "abnormal phenomena" in rules will surely lead to changes and changes of "structural paradigm" and even "sociological paradigm".The "abnormal phenomena" of the fiduciary duty of care system in its own practice and the breakthrough of the existing rules have impacted the fiduciary duty construction paradigm and prompted its internal evolution to adapt,explain and accommodate the changing fiduciary duty.Firstly,the evolution of duty of care in business is as follows: the evolution of separate management obligations includes the evolution from absolute prohibition of mixed management to exception prohibition,from "physical" to "financial and organizational significance" as the main management mode,and the loosening of civil liability of mixed management of trustees.Personal management of the evolution of the principle of transactional agency to the exception prohibition,the evolution of discretionary agency to the exception prohibition,and the loosening of the fiduciary responsibility.The evolution of rational decision-making obligation is mainly manifested in the expansion of the freedom of private interest trust investment decision and the flexibility of the principle of proximate cause of public trust.Secondly,the evolution of duty of care system in the process of rational judgment of behavior includes the evolution of property safety in the element of prudence and reasonable income of property,and the evolution of uniform standard in the element of skill to the differentiation standard of professional trustee.At the end the thesis summarizes the general duty of care system evolution law: general trend evolves from regulatory to punitive then to regulatory change,system of rules evolve from flexible to rigid then back to flexible change,the connotation of the system evolves from decentralization to unification then back to dispersion,text evolves from incomplete to complete and then from closed to open form.Chapter four is a legal and sociological analysis of the construction of duty of care.With the unprecedented development of market economy in social factors,the innovation of national economic management,and the prominence of individual and liberalism,the trust system keeps adjusting itself to be more adaptable and inclusive.As an important rule of trust law,duty of care is closely related to the changes of Chinese society and has a positive interaction with it.The social factors of the evolution of duty of care are mainly reflected in the change of the concept of regulation,which is the duty of good faith is essentially the restriction imposed by the state on the market.The rise of commercial trust results in the increase of investment promotion factors,effective management factors and the parties' awareness of using contract to protect their own rights and interests in the trust system.The rise of commercial trust changes the rules of duty of care,which makes the application of diversified investment concept reduce the constraint of discretion,increase the effective management factors in the evaluation of duty of care,and change the mode of obligation regulation from prior prohibition to post-accountability.The perfection of the legal system itself,such as the systematic optimization of the measures to restrict the irrational decision-making of the trustee in legislation,and the development of judicial technology also has an impact on the duty of care.Chapter five is about the legislative amendment of duty of care in China.The legal essence of duty of care is active duty,which requires the trustee to act actively and take its subjective goodwill as the premise,and it is also the boundary of the discretionary power of the trustee.China's current duty of care system has the following defects: the logic of its behavior regulation is confused,the application field of the duty of care system is ambiguous,the judgment standard of duty of care performance is general,and the duty of care system is heavy and rigid.Therefore a fiduciary duty of care in China should take "trustee" architectural patterns as a duty of care principle regulations,in order to "business link" architectural patterns as a specific application field,a duty of care to "rational elements" architecture as the obligation to execute the judgment standard,should act with "weakening" fault liability to strengthen goodwill architectural patterns as the concept of accountability.