Research, Of The Securities Investment Fund Managers Fiduciary Duties

As a product of the development of securities market and social industrial division to a certain extent, securities investment fund is not only a means of market indirect financing, but also an investment agent system. Characterized by stabilizing and promoting the capital market, it has come to be a vital part of the financial system in countries that have relatively advanced capital market. In recent years, under the China's policy driven of extraordinary development of institutional investors, the securities fund industry developed rapidly, which is bound in an important position of the whole financial system. In the system arrangement of securities investment funds, fund manager acts as investment professionals, whose business service contains a high degree of professionalism. In order to let fund manager obtain better record through the use of funds, it is necessary to give it great discretion. Therefore fund manager lives in the central position in the investment fund system arrangement. On the other hand, there is serious information asymmetry between investors and fund manager. Therefore it will easily lead to moral risks. It is critical for protection of investors' interests to effectively regulate the action of fund manager and prevent the abuse of its rights or duties, so that the detriment of the interests of investors will not occurre. From the practical experiences of foreign developed countries, the installment of fiduciary duty of fund manager has positive meaning in the system of investors' protection. The reasonable regulation on fiduciary duty of fund manager is the way to guarantee the healthy and sustainable development of securities industry. It is also the main thrust of this thesis.On the basis of exploring the fiduciary obligation of securities investment fund manager in full perspectives, this thesis seeks to analyze the status quo of obligation violated by fund manager and analyze the issue of fiduciary obligation missing in china's fund industry in order to explore an sound path to promote the legal system of Chinese securities investment fund. Through the study of different countries by compatative method, we obtain the samples to analyze and learn from, in order to choose a sound model for our contract-type securities investment fund. Besides, the study of different countries can provide a more comprehensive analysis perspective and avoid following others with blind minds in the aspect of system introduction and amalgamation, before we adopt corporate-type securities investment fund in the future.This thesis integrates theory of law and economics and methods of comparative and practical analysis in order to explore the legal issues on the fiduciary obligation of securities investment fund manager. Through comparison, we can deepen the understanding of the laws and expand the vision. Different countries vary the type of fund. Internal structure of each fund has its own characterism. We can form a more comprehensive understanding of this issue through comparing, organizing, summarizing and analyzing the legislations and practices of different countries.This thesis is divided into four chapters.Preamble of the thesis mainly defines the term meaning of fiduciary obligation, the purpose and significance of topics, the literature review and the issues to be resolved in this thesis.The first chapter, the modes of securities investment funds and fiduciary obligation, is the basic point of this thesis. The first section summarizes the common essence of the securities investment fund, through comparing its different names and definition methods by the United States, Great Britain, Hong Kong, Taiwan, Japan and South Korea and Chinese Mainland. This section also recognizes its legal status of commercial trust and makes brief comparison between contract-type and corporate-type of securities investment fund. The second section analyzes its economic rationality in thiree perspectives, those are transaction costs, internal structure and risks controlling. The author believes that the motive of traditional private trust developing to investment fund can be interpreted as saving transaction costs through an organization. Investment fund mainly invests in various securities, so that it has a high degree of mobility, which determines its external framework. The motive of the aforementioned framework is to save the costs of enterprise organization. The third section mainly discusses the general theoretical issues on securities investment fund manager with the perspective of trust relationship, including the test standards, sources and content of fiduciary obligation.The second chapter, the demonstration analysis of fiduciary obligation of securities investment fund manager, is the part connecting theoretical knowledge with practical act. This chapter mainly discusses the specific act of illegal operation by securities investment fund manager in the United States and China, and further points out that the source of action deviation of potential violation to fiduciary obligation by fund manager exists in the interest conflicts and opportunism, which is opposite to the concept of "beneficiaries' interests above everything else", and shows the necessity of regulation of securities investment fund manager.The third chapter, "the regulation models of fiduciary obligation of securities investment fund managers", specifically discusses the regulation models of both contract-type fund and corporate-type fund. The regulation models of contract-type fund can be divided into four categories, those are single trust model, dual trust model, the model of entrusted with jointly parties and the model of entrusted with watchdog. As for the regulation model of corporate-type fund, this chapter mainly introduces the American model, Japan model and British model. Each model has its pros and cons and has a closely connection with its own financial and legal environment. But it is undeniable that different models strengthen the supervision over the fiduciary obligation of fund manager from different angles, the ultimate goal of which is to ensure fund manager implement its fiduciary obligation to the investors.The last chapter, "china's legal regulation over fiduciary obligation of fund manager", firstly talks about the defects of regulation over contract-type fund manager's obligation. Ownership, management right and the right to custody are not rationally distributed among related interests, which provides opportunity and space for illegal and tort acts. Therefore it is necessary to strengthen the fund internal binding. At the same time, corporate-type fund is on the basis of theory of corporate law and trust law, with the two advantages and strong vitality. And China should adopt the model of corporate-type fund timely.Based on the analysis and comparison of fund models and operations adopted by major countries, this thesis is to strive for straightening out the related parties's interests and relationship of balance between the above parties in the fund, especially the constraints on the fund manager. Only in this way, can we improve the existing system and effectively protect the interests of investors.