Study On Legal Status Of Fund Custodians

Influenced by the economic downturn and the tightening of regulatory policies,the investment fund industry is facing challenges,with frequent violations and negative performance of duties by fund managers.Therefore,the role of the fund custodian,especially the status of the custodian and its relationship with the fund manager,has received great attention.Clarity of legal status is an important basis for clarifying the obligations of fund custodians,and it is also a prerequisite for fund custodians to define the standards of responsibility in practice.Due to the absence of relevant domestic legal rules,there are certain disputes between theoretical and practical circles on the legal status,scope of obligations and responsibilities of fund custodians.How to define the legal status of China's fund custodian,whether it forms a co-trustee with the fund manager,what is the boundary of the custodian's obligations corresponding to the custodian's status,and the forms of responsibility of the custodian and the manager are all problems that need to be solved urgently.Under this background,this paper,based on the current legal practice,uses various methods such as comparative law research,empirical research and literature research to investigate the legal status of the fund custodian.On the basis of defining the legal status,this paper studies the dimensions of the trustee's obligation boundary and responsibility commitment,with a view to providing suggestions and suggestions for the crux of fund custody and path optimization.This paper consists of an introduction,a text,a conclusion and an appendix.The main content of the text includes:The first part mainly discusses the significance of discussing the legal status of the fund custodian and the main focus of controversy reflected in typical cases of judicial practice in China.In order to prevent fund managers from abusing their power to embezzle fund assets,the role of fund trustee arises at the historic moment.This article summarizes and combs the legal provisions concerning fund custodians in our country,and finds that the fund supervision in our country is characterized by separate supervision and self-discipline management.The functional norms of fund custodians are scattered in the respective applicable provisions of various funds,and the legal application of some types of funds is controversial.Through the analysis of two typical cases,it is found that the focus of the dispute is mainly on the legal status of the fund custodian in the absence of clear guidance from the upper law,and the resulting problems of unclear obligations and responsibilities of the custodian,which provide a direction for the analysis and research of the full text.The second part studies the accurate determination of the legal status of the fund custodian.There are differences in the status of fund custodians under different legislative modes,and the clarity of legal status is the premise to clarify the obligations of fund custodians and the standards of responsibility.Through comparative law research,this article has carried on the inspection to the fund legislation pattern,and has carried on the comparative research to the contractual fund and the company fund in fund litigant's legal relations,especially the fund trustee legal status.Returning to our country,the investment fund structure under Chinese law adopts the "non-separation" mode,that is,the "unitary trust" legislative mode.Compared with contractual fund,the corporate fund legislation needs to be improved.In contractual funds,the trustee generally belongs to the role of trustee,but in corporate funds or some private equity funds,it may be the trustee under the entrustment contract.In the further investigation of the legal relationship between the fund custodian and the fund manager,it is concluded that the two do not constitute a joint trustee in the Trust Law and do not necessarily bear joint and several liability for compensation,either from the perspective of legal norms or from the perspective of property ownership,transaction processing and liability.In view of the problems found in the above research,the author suggests that unified investment fund legislation should be adopted to clarify the legal status of the custodian,perfect the corporate fund custodian system,and strengthen the independence of the custodian.The third part focuses on the trustee's obligations.By discussing the relationship between the trustee's legal status and obligations,it is found that the trustee's obligations under different legal status have different characteristics.Therefore,the fund trustee's obligations should be defined according to the legal status.In practice,the source of the fund custodian's obligations is legal provisions and contractual agreements.Starting from the legal obligations and contractual obligations,this paper clarifies the relevant legal issues and puts forward the ways to improve them.Through sorting out the legal obligations table,it clarifies obligations to the fund custodian,and discusses the rationality of the existence of legal obligations,especially the duty of care and loyalty.Logical analysis of the application of the law to the issue of whether private equity funds,especially private equity funds,can apply Securities Investment Fund Law of the People's Republic of China due to unclear regulations;This paper probes into the present situation of the inconsistency between the powers and responsibilities of the fund custodian's supervision power and supervision obligations.In terms of contractual obligations,the legal obligation clause is an arbitrary norm that applies automatically,and the parties should be allowed to exercise autonomy over the trustee's obligations according to the principle of the trusteeship's status and rights and responsibilities.The validity of the fund custodian's obligation exemption clause should be determined in combination with the clarity of the agreement,the exemption of what obligation and the way of exemption.The fourth part is the discussion on the trustee's responsibility based on the clarity of the trustee's legal status and obligations.For the determination of the trustee's responsibility,the principle of fault should be taken as the principle of attribution to judge whether the fund trustee has fulfilled his trust duty.When the trustee is responsible and damages are determined,the subjective fault of the fund trustee,the degree of influence of the loss on the trustee,the causal relationship,and the objective conditions for the performance of duties should be considered.Based on an empirical study of 34 valid samples collected from 203 judicial documents,this paper classifies and analyzes the specific evaluation criteria and contents of the obligations and responsibilities of fund custodians in judicial practice.Based on the legal practice and the current situation of trust,it is suggested that the system design of the fund trustee should be based on the legal status of the fund trustee,embody the unity of rights,responsibilities and benefits,perfect and refine the imputation principle,the distribution of burden of proof,the form of responsibility and the scope of compensation for damages,etc.In the process of pursuing the responsibility of the fund trustee,attention should be paid to the balance between the protection of the interests of investors and the principle of consistency between the rights and responsibilities of the fund trustee,and a trust system with compatible incentives should be constructed.