The Research On The Judicial Identification Of The Trustee 's Duty

The trust industry shows a vigorous development in our country with the time flies.All kinds of trusts develop fast such as the emergence of the village after the rain.However,a variety of trust disputes are inevitably adding,in which whether the trustee take the responsibility to manage the trust property accounting for a big proportion.In recent years,the research on the obligations of trustees in China has been relatively concentrated,but most of them come from the provisions of the western countries,and then provide suggestions for the improvement of relevant systems in China.However,there are few articles on the further study of the standards of trustee's duty,and the articles that specialize in the judicial identification are rare.At present,there is still inadequate study on the judicial identification of trustee's duty in China's academic which needs to make up urgently.And as the time of implementing of trust law is short;the knowledge of trust law is not universal;the people's court directly to hear and make judgments of the trust cases under the trust lawis not much as the experience of judicial practice is not rich enough.Throughout the current legal provisions in China,we can see that the laws and regulations of our country are relatively general to the trustee,and there is no uniform stipulation for trustee's duty.Now the author can only directly refer to some theoretical research,which led to the judicial practice lacks of uniform identification criteria and the chaotic of current judicial trial on this issue.In order to solve this problem,we need to clarify a unified set of trustees' duty for the court's reference,and the court also needs to sum up a set of norms from the daily practice so as to effectively solve the problem that judicial faced.This paper is divided into three parts to talk about this problem,and each part is illustrated basing on the theoretical analysis and combining with a large number of judicial cases.First of all,the first chapter introduced the theory of trustee's responsibility standard,and the author will discuss this chapter from three sections separately: the author introduces the trustee's fiduciary duty in the first section;In the second section the author from the Statutory List System(SLS),Prudent Person Rules(PPP)and Prudent Investor Rules(PIR),three different period to introduce the Anglo American law system about the duty standard of trustee;In the third section the author from the comparison view between continental law system and Anglo American law system to introduce the duty standard of trustee.Secondly,The second chapter focuses on the analysis of the duty standard of trustee in China from the comment of judicial determination.In this part,the author is divided into three sections to explain separately.In the first section,the author is mainly through the bankruptcy of rigid payment to introduce the present situation of the trustee's fidelity duty in our country.In the second section,the author is mainly through the lack of a unified standard of responsibility and the provisions to illustrate the shortcomings of our existing due diligence.In the third section,the author analyze the limitation of the existing due diligence from four aspects,that is different trials with the same case,the disagreement of the burden to proof,intentionally to avoid the question whether the trustee is responsible and clearly not to investigate the trustee's Paul bottom behavior,which are to some extent hindered the development of China's trust industry.Finally,the third chapter puts forward the ideas and measures to perfect the trustee's standard of responsibility and its judicial decision from different views based on the large number of cases to solve the problem.In this chapter,the author is divided into two sections to discuss separately.The first section mainly from two aspects to improve the trustee responsibility standards: a unified standard of responsibility and the trust registration system.Followed the second section is from five aspects to put forward measures to improve the judiciary identification of the trustee's duty.That is using a unified judicial approach,reassigning the burden of proof,clearly identifying the trustee in different cases,security behavior bearing the failure of the trust,clearing liability of the passive management trustee.In this part,the author introduces the meaning and value of this paper at the end of this paper,but also points out that there are still many shortcomings here,and then put forward some relevant suggestions for the future improvement.