Trustee Of A Trust Duty Of Care Study

As the socio-economic development ,investment conditions changed , the transfer of the focus of wealth , the modern trust's functions and values changed more , and great changes have taken place in the trust from the traditional transfer design of the wealth to management design of enable value-added wealth , the trustee has moved from a negative holder into a positive manager of property. In the background of the expansion of the trustees'authority by modern trust law, the trust law stipulates the prudent duty of the trustee so as to prevent the trustees slacking duty of the trustees, at the expense of the interests of justice and the expense of beneficiaries. With the "portfolio theory" into the common law system, it has developed a "prudent investor rule." However, our trust law don't definitely stipulate the prudent duty of the trustee, so that the interests of the beneficiaries can not be fully protected and the development of trust industry also be influenced. Based on this, This article research the prudent duty of the trustee in relevant countries and regions from a comparative, historical analysis, evaluation, economic analysis, to help to complete the relevant rule in china. In addition to the introduction and conclusion, the text is divided into the following chapters:The topic of Chapter one is"Overview the prudent duty of the trustee". The first section mainly definite the prudent duty from the concept, status, the standard point; The second Section compares the prudent duty, the obligation of good management, the duty of loyalty in the common law and civil law.The topic of Chapter Two is a comparative study on the trustee's prudent duty. Previous two sections main research the prudent duty of trustee in Case Law and Statutes in England as the birthplace of trust and in USA having most develop trust industry, discuss the development and evolution of the prudent duty of trustee in the two countries; The third section briefly described the content of the prudent duty of trustee in Japan, Korea and Taiwan's trust law. The topic of Chapter Three is the analysis of the legal attribution of the rule of the prudent duty and the trustee's responsibility. The first section analyses theoretical basis of the prudent duty from the moral point and transaction costs point ,and propose that Trustee perform the prudent duty is still the requirements of good faith and the rule of the prudent duty also has the effect of transaction costs saving as public goods provided by a country .This section analyses the legal attribution of the rule of the prudent duty and propose that the rule of the prudent duty is not a mere optional flange or jus cogens; The second section discuss the legal nature of act breaching the prudent duty , propose that this is act of nonperformance of debt , and analyses the methods of bearing c liability when trustee don't perform the prudent duty.The topic of Chapter Four is comment and advice of perfection on the regulation of the trustee's prudent duty .The first section mainly review the defects that exist in China's Trust Law on the prudent duty of trustee , and propose that China's Trust Law have some problems, such as the standard of prudent is not clear, Content is imperfect , lack of maneuverability .The second section research how to perfect the prudent duty of trustee in china ,and propose some advices in the content and standards of the prudent duty, protection of the trustee's rights ,etc.