The Legal Status Of The Custodian Of Investment Funds

Fund custodians are divided into two categories.One is the investment fund custodian,the other is the transaction fund custodian,and the legal status of the transaction fund custodian is the entrusted trustee.The rights and obligations are stipulated by the custody agreement and follow the contract freedom concept.However,regarding the legal status of the fund custodian,there are several theories such as “the agent of the administrator”,“the custodian of the property”,the “trustee of the manager” and the “trustee of the investor”.The controversy is relatively large.The article focuses on the legal status,rights and obligations,and legal responsibilities of the investment fund custodian.The focus of the dispute over the legal status of investment fund custodians lies in whether the legal relationship of investment fund custody is in trust legal relationship or contractual legal relationship.The point of this paper is that the investment fund custodian is the trustee in the trust legal relationship.First of all,the investment fund custodian must maintain independence because of its need to keep funds and supervise management functions.The subordination of the agency relationship conflicts with the independence of the custodian,so the custodian is not the agent of the manager;secondly,the investment The positioning of the dual functions of “custody” and “supervision” of the fund custodian means that the custodian is not simply the custodian of the administrator.The trustee's independence in the trust legal relationship is compatible with the essential attributes of the fund custodian,so the investment fund custodian is defined as the trustee: in the investment fund custody,the manager and the custodian as the joint trustee,only the investor benefits In the transaction fund custody,the custodian acts as the trustee,both parties to the transaction are beneficiaries,and their rights and obligations are relatively simpler.The rights and obligations of the fund custodian are determined by their legal status.The rights are mainly derived from the authorization of the trusteeship agreement,followed by the provisions of laws and regulations.At the same time,the rights in the laws and regulations can be changed and supplemented in the trusteeship agreement.Compared with the administrator,the investment fund custodian should bear the loyalty obligation and the duty of care based on the commonality of its trustee status;based on the responsibility of the fund custody,it should assume the supervision obligation,except for the basic obligations stipulated in laws and regulations.The escrow agreement may add special obligations.Regarding the legal responsibility of the investment fund custodian,this paper uses the case of the first investor to sue the custodian as the basis of analysis,and believes that there are the following problems in China.: First,the application of the law is not clear,and the application of the legal concept is not accurate.In the trial of the investor's case against the custodian,the court regards the escrow agreement as an ordinary civil contract.According to the principle of relativity of the contract,the manager and the custodian are the opposite parties of the contract,and the investor can only The investment contract is accountable to the manager.Obviously,applying the escrow agreement to the contract law rather than the trust law ignores the legal status of the trustee of the trust as a trustee.2.The fund custodian bears the no-fault joint liability of the joint trustee,and the legal liability is too heavy.This paper believes that the fund custodian and the manager should bear the joint liability of the fault,and if there is any fault in the scope of the violation of the common obligation.Then assume joint and several liability;under the condition of violating the individual obligations,they shall be held responsible by the principle of liability according to their fault liability.