The Research On The Fiduciary Duty Of Securities Investment Fund's Manager

Securities investment fund which is established by trust principle,has the request—proxy question because of the fund's separation between property ownership and rights of management.If can not get valid supervision,the fund manager may damage fund holder's benefits by abusing rights of management.In practice,conflicts of interest often ocurrs between fund manager and holders in our country.Therefore,in order to form a valid right mechanism to keep in balance between fund parties,we must authorize fund manager the fiduciary duty.Those countries where the fund industry is well developed, has achieved considerable research in this field and formed comprehensive legal system in the legislation.But,current academic research in the securities investment fund from the legal point is small in our country theoretical circles.In the research results,most of all are focused on the supervision of securities investment fund industry,fund manager's specific obligations and so on.Comprehensive and systematical academic achievement to fund manager's fiduciary duty is relatively few.This article take the fund manager's fiduciary duty as the master line,use the research methods such as comparison and real diagnosis,establishes fund manager's legal status,elaborates the elementary theory of fund manager's fiduciary duty,discusses the basic content,the specific requirements and the criteria of the duty of care and loyalty in detail,and elaborates the effective action to supervise manager to fulfill the fiduciary duty,protect the fund holder's right based on our country's present situation.This article is arranged as follows:The first part is preface.The anthor mainly analyzes the foundation and the flaw of trust by which securities investment fund is established.Securities investment fund has the request - proxy question,so it may cause the Adverse Selection and the Moral Risk which harms the trustee's just rights,and the fund industry has the contract-incomplete problem,which may cause correspondence between the right of surplus domination and surplus claim,these all contain the risk that the manager may suffer fund properties.Then, summarizes securities investment fund's present situation in our country,and analyzes our country fund's question from external environment,fund Supervision,fund rating, fund trust and so on.The second part focuses on the pattern of securities investment fund's legal relationship.Firstly,the author difines the basical nature of securities investment fund.Because the securities investment fund has the essential feature of organization,in consider to maintain investment security,safeguard the investor's legitimate rights,the author suggests that we should locate the securities investment fund in the form of investment organization in the legal nature.Then the author evaluates main legal relationship pattern of various countries securities investment fund,and evaluates our country's "Common trustee" pattern,proposes that in order to difine our country's fund legal relationship pattern,we have to consider the fund holder's benefit,comforming to explaine each parties' responsibility,insisting basic trust principle,conforming to our country's concrete national condition and so on,and proposes many improved measures such as defining each parties' responsibility,canceling joint liability.The third part centers on the legal basis analysis of the fund manager's fiduciary duty elementary theory.Firstly,discusses the implication of fiduciary duty,and confirmes the fund manager's fiduciary duty,briefly introduces the concrete content of fiduciary duty;secondly,in view of our country's stipulation,proposes that we should replace good faith duty with fiduciary duty to be fund manager's official duty;thirdly,analyses the nature of fund manager's fiduciary duty,proposes that fund manager's fiduciary duty is a distinguished duty which is different from the real rights and the creditor's rights.The fourth part focuses on the securities investment fund manager's duty of care.Explaines the meaning of the duty of care by comparing to the Common Law System and the Civil Law System;induces the developed countries and the areas' specific request of the duty of care concering ways and areas of investmeng by comparison method;according to the entire evolution of the judgment standard of the duty of care,suggestes that our country should adopt the modern investment profolio theory to judge the duty of care.The fitch part focuses on the fund manager's duty of loyalty.Pointes that the conflicts of interest are the primary cause that fund managers violate the duty of loyalty;elaborates the specific patterns of the duty of loyalty,including myself transaction,joint transaction,agent agency transaction and so on.The sixth part focuses on the measures of supervising fund manager's fiduciary duty.In foundation of evaluating main countrys' fund supervising pattern,proposes that country should adopt the system "take government supervision as the hauling,take internal supervision as the core,carriy on the macroscopic guidance and the moderate policy support to the fund market" at present;then mainly proposes improving methods to improve fiduciary duty's exterior restriction mechanism from three aspects,the market mechanism,government supervision,the profession autonomy and so on,improve fiduciary duty's interior restriction mechanism from holder's supervision,fund trustee's supervision,the fund management fee and so on.