On The Nature Of The Legal Relationship Of Corporate Bond Trustee

The legal relationship of corporate bond trustee management is the basic issue of bond management,which is directly related to the duties and obligations of the bond trustee and the protection of the interests of bondholders.At present,China’s laws,regulations and regulatory authorities have unclear views on the nature of the legal relationship of entrusted management.There are also problems in the bond trustee system,which is difficult to connect with the bondholder meeting system.The academic circles have different opinions on the nature of the legal relationship of bond trustee management,mainly including the theory of entrustment,the theory of collateral trust and the theory of complete trust.These three views have their own drawbacks.Entrustment theory makes the bond trustee lose the right to deal with default events flexibly,which is not conducive to the protection of the rights and interests of bondholders;The theory of secured trust forcibly interprets the same legal relationship as two legal relationships according to the non essential element of whether the bonds are secured or not,resulting in confusion in understanding.In the end,it only solves the problems of the custody of collateral and the realization of security interests,but does not solve the fundamental problems;Although the theory of complete trust wants to solve the problem of the duties and obligations of the bond trustee in China,it violates the basic legal principle of trust law on trust property and confuses the two legal relations of trust and trust.In addition,these three views only think about the legal relationship of corporate bond trustee management under the framework of the bond trustee system,but do not stand at the height of bond management and do not think about the connection between the two systems,so they can not solve the problem of system design in China.China’s bond management system has learned from foreign legislation.It is still necessary to review and study the legislation of the United States,Japan and Germany.The duties and obligations of bond trustees in the United States are essentially different before bond default,after technical default and after material default.The view that the legal relationship of bond trustee management is not a trust relationship is also influential.Some American scholars even believe that the bond trustee is more similar to the company directors than the trust trustee.The Japanese corporate bond manager is not the trustee of the civil trust contract.The rights,obligations,conflicts of interest and resignation of the corporate bond manager are different from the relevant contents of the civil entrustment contract,and the corporate bond manager after breach of contract becomes the executive body of the corporate bond creditor meeting.Under the bondholders’ meeting system,Germany allows the establishment of the bondholders’ joint agent,which plays a similar function to the bond trustee,but its authority basically comes from the authorization of the bondholders’ meeting and has corresponding legal obligations.When determining the nature of the legal relationship of bond trusteeship,China should comprehensively consider China’s practice,legal tradition,bond management system,bond market and other factors,and learn from the experience of comparative law.Starting from the practice of bond trusteeship in China,this paper holds that bond trusteeship is a business activity,the bondholders authorize the bond trustee through the bond trusteeship agreement and the bondholders’ meeting,and the bond trustee acts for the interests of the bondholders,which conforms to the constitutive requirements of commercial agency,and puts forward the view that the legal relationship of bond trusteeship is the legal relationship of commercial agency.As a commercial agent,the bond trustee has a certain discretionary space and needs to bear the duty of care and loyalty.This enables them to take timely measures according to changes in market conditions and dare not infringe the interests of bondholders,so as to achieve the purpose of the bond trustee system.The commercial agency theory holds that the principal is all bondholders,which is a group concept.In terms of organizational law,this group is the bondholders’ meeting.All bondholders re authorize or instruct the bond trustee through the resolutions of the bondholders’ meeting,so as to safeguard their own rights and interests.The text is divided into four chapters.The first chapter introduces the problems caused by the unclear legal relationship of the bond trustee,including the delay of the bond trustee in exercising its rights,the infringement of the interests of the bondholders,and the connection between the bond trustee system and the bondholders’ meeting system.The second chapter introduces the different views on the legal relationship of bond trustee and the existing problems.The third chapter seeks enlightenment by investigating and thinking about foreign legislation.The fourth chapter introduces the practice of bond trustee management in China,proves that the legal relationship of bond trustee management is a commercial agency relationship in law,and expounds the significance of this view.