A Study On Trustee's Duty Of Care In Trust Law

With the development of social economy,the modern trust function changed from traditional wealth inheritance to property appreciation,and the trust trustee changed from negative property holder to active property manager.Therefore,the fiduciary system centered on the trustee has given the trustee a wide range of management authority.So that the trustee can better achieve the purpose of the trust and promote the maximum benefit of the beneficiaries;But on the other hand,in order to prevent the trustee's breach of faith and the improper exercise of rights against the beneficiaries 'interests,it has become the focus of the trust system legislation of various countries to impose legal care obligations on the trustee.And trust is a foreign product in our country,and there is still a gap between the current trust law and the common law countries and other civil law countries.The legal regulation of the trust trustee's duty of caution in our country still remains in the relatively simple abstract normative level,and there is no legal interpretation to realize the systematization and concretization of the obligation standard.This kind of abstract and vague obligation norm makes the current trust law in our country is not enough to be used in the fast development of trust practice,and many disputes about trust can not be well resolved.Therefore,the author tries to propose some feasible suggestions for regulating the trustee's duty of prudence in our trust law by writing this article.This article removes the introduction and is divided into three parts:The first part of the trust from three aspects of the trustee's duty of care to investigate.Firstly,starting from the essence of trustee's obligation and the two major obligations of trustee,this paper analyzes the connotation and specific requirements of trustee's duty of care and the legal significance of the duty of care.Secondly,the author combs the legislation provisions of our country's laws,regulations and normative documents on trustee's duty of prudence,examines whether the current legislation meets the connotation requirements of trustee's duty of prudence,and analyzes the shortcomings.The present standard of trustee's duty of care is also analyzed and analyzed.Finally,based on the above investigation,the author believes that there are two outstanding problems in the trustee's Prudential obligation.The standards of Prudential investment behavior in the Prudential obligation are not clear,the trustee's transfer of entrustment behavior is limited and his liability is too strict,and the problem itself is elaborated in detail in the light of some cases.The second part mainly analyzes the trust trustee's duty of prudence and comparative law.First,the theoretical basis of the trust trustee's duty of care is the faith relationship under the horizontal law,but the trustee's duty of care has its own unique value orientation and faith status,and its obligation standard is higher than other faith obligations in the broad sense.The trust trustee's duty of care can not be copied completely from other legal norms.The law should attach importance to the status of the trust trustee and make strict legislation on his duty of care.Secondly,in the light of the practices of the more mature Anglo-American countries in the legislation and practice of fiduciary duty,and the actual experience of Japan,South Korea,and Taiwan in China,the corresponding practice of fiduciary duty in these countries and regions is analyzed.The two legal systems 'duty of caution is compared,from which the discussion can draw lessons.Finally,based on the above analysis,the author believes that the law of our country should enrich the content of the general provisions of the duty of caution,clarify the behavior standard of the trustee's prudent investment,and relax the restriction of trustee's transfer.Based on the above discussion,the third part puts forward some suggestions for the better regulation of trustee's duty of prudence.First,amend the abstract and vague criteria to regulate the detailed criteria for the careful investment of trustees in the form of special legislation and supplemented by guidance cases,including the establishment of multiple criteria for prudent investment and the establishment of specific standards according to different investment stages.Secondly,improve the agent transfer requirements,increase the trustee can transfer the circumstances and according to the subject matter can be transferred to clarify its corresponding liability.Finally,the author believes that the reversal of the burden of proof should be set up to prevent the trustee from betraying the trust or abusing the trust rights and infringing the beneficiary's interests.