营业信托受托人谨慎义务研究
发布时间：2018-11-17 16:14
【摘要】：信托制度产生在英国，自诞生以来，作为一种有效的财富管理方式被世界上很多国家移植继受，逐渐发展成为现代经济中一项新的财富管理工具。1999年2月，国务院办公厅下发了《国务院办公厅转发中国人民银行整顿信托投资公司方案的通知》（简称国办发12号文），此文明确规定通过整顿来实现信托业与银行业，证券业严格的分业经营，信托宣告进入了新的历史发展时期，明确“受人之托，代人理财”的信托定位，确立了主营信托业务的金融机构为信托公司，使营业信托在我国资产管理发展过程中不断发展壮大。 但是在以受托人为中心的现代信托法律关系中，由于受托人的重要性不言而喻，因此为制约营业信托受托人以其优势地位来牺牲受益人的合法权益作为换取资产管理规模的代价，所以现代各国信托法律中均为受托人设定了严格且具体的各项谨慎义务。广义的谨慎义务可以分为两类：第一类是积极谨慎义务，第二类是消极谨慎义务，积极谨慎义务已经由《信托法》第25条做出规定，消极性义务是由信托法律规定禁止违反的义务，上述消极谨慎义务的内容已经盖由我国《信托法》在第26条，第27条，第28条中明确规定，但是我国《信托法》第25条并未对积极谨慎义务加以详细规定，基于此，本文对相关国家的营业信托受托人谨慎义务进行考察，以借鉴并完善我国信托法律规定。本文分为四部分： 第一章“营业信托受托人的谨慎义务概述”，第一节描述谨慎义务的概念和内容；第二节是从完善营业信托受托人谨慎义务的必要性入手，分析现代经济发展中立法确立谨慎义务的重要意义。 第二章“国外信托受托人谨慎义务的立法及评价”，第一节是对英国，美国以及日本信托法律中对谨慎义务的内容进行比较法考察；第二节主要分析英美法系国家中谨慎义务的标准和对谨慎义务的积极实践。 第三节“我国营业信托受托人谨慎义务的立法现状及存在问题”，，第一节叙述我国营业信托受托人谨慎义务的现状；第二节通过对我国目前营业信托中的信托业务的现状分析，提出了我国在适用谨慎义务方面突出的问题。 第四节“完善我国营业信托受托人谨慎义务的法律对策”，主要从采用谨慎义务的标准，确立谨慎义务标准体系，确定委托人知情权的行使方式和救济途径，确立外部专家审查制度四个方面论述监督营业信托受托人谨慎义务的履行。
[Abstract]:Trust system came into being in England. Since its birth, it has been transplanted and accepted by many countries in the world as an effective way of wealth management, and has gradually developed into a new tool of wealth management in the modern economy. The General Office of the State Council issued a circular transmitting to the General Office of the State Council the plan of the people's Bank of China for the rectification of trust and investment companies (referred to as document 12 issued by the State Office), which clearly stipulates that the trust industry and the banking industry can be realized through rectification. With the strict separation of the securities industry, the declaration of trust has entered a new period of historical development. It is clear that the trust position of "being entrusted to others and managing money for people" has been clearly defined, and the financial institutions engaged in the main trust business have been established as trust companies. Business trust in China's asset management development process of continuous development. But in the modern fiduciary legal relationship centered on trustees, the importance of trustees is self-evident. Therefore, in order to restrict the trustee of business trust sacrificing the beneficiary's legal rights and interests as the price of asset management scale, the trust law of modern countries has set up strict and concrete duty of care for the trustee. The broad sense of the duty of care can be divided into two categories: the first is the positive duty of care and the second is the obligation of negative caution, which is already provided for in Article 25 of the Trust Law. The negative obligation is an obligation prohibited by trust law, and the content of the above negative duty of care has been clearly defined in articles 26, 27 and 28 of the Trust Law of our country. However, Article 25 of the Trust Law of our country does not specify the positive duty of care in detail. Based on this, this paper investigates the duty of care of the trustee of business trust in relevant countries in order to learn from and perfect the provisions of the trust law of our country. This paper is divided into four parts: the first chapter, "Overview of the duty of care of the trustee of business trust", the first section describes the concept and content of the duty of care; The second section begins with the necessity of perfecting the duty of care of the trustee of business trust, and analyzes the significance of establishing the duty of care in the legislation of modern economic development. The second chapter is "the legislation and evaluation of the duty of care of foreign trust trustees". The first section is a comparative study of the contents of the duty of care in the trust laws of the United Kingdom, the United States and Japan. The second section mainly analyzes the standards of the duty of care and the positive practice of the duty of care in common law countries. The third section "the legislation status and existing problems of the duty of caution of the trustee of business trust in our country", the first section narrates the present situation of the duty of care of the trustee of the business trust in our country; In the second section, through the analysis of the present situation of the trust business in our country, we put forward the outstanding problems in the application of the duty of care in our country. The fourth section, "perfecting the legal countermeasure of the trustee's duty of care in our business trust", mainly from adopting the standard of the duty of care, establishing the standard system of the duty of care, determining the way of exercising the trustor's right to know and the way of relief. This paper discusses the implementation of the duty of care of the trustee of supervising business trust from four aspects of establishing the system of external expert examination.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.282
本文编号：2338403
[Abstract]:Trust system came into being in England. Since its birth, it has been transplanted and accepted by many countries in the world as an effective way of wealth management, and has gradually developed into a new tool of wealth management in the modern economy. The General Office of the State Council issued a circular transmitting to the General Office of the State Council the plan of the people's Bank of China for the rectification of trust and investment companies (referred to as document 12 issued by the State Office), which clearly stipulates that the trust industry and the banking industry can be realized through rectification. With the strict separation of the securities industry, the declaration of trust has entered a new period of historical development. It is clear that the trust position of "being entrusted to others and managing money for people" has been clearly defined, and the financial institutions engaged in the main trust business have been established as trust companies. Business trust in China's asset management development process of continuous development. But in the modern fiduciary legal relationship centered on trustees, the importance of trustees is self-evident. Therefore, in order to restrict the trustee of business trust sacrificing the beneficiary's legal rights and interests as the price of asset management scale, the trust law of modern countries has set up strict and concrete duty of care for the trustee. The broad sense of the duty of care can be divided into two categories: the first is the positive duty of care and the second is the obligation of negative caution, which is already provided for in Article 25 of the Trust Law. The negative obligation is an obligation prohibited by trust law, and the content of the above negative duty of care has been clearly defined in articles 26, 27 and 28 of the Trust Law of our country. However, Article 25 of the Trust Law of our country does not specify the positive duty of care in detail. Based on this, this paper investigates the duty of care of the trustee of business trust in relevant countries in order to learn from and perfect the provisions of the trust law of our country. This paper is divided into four parts: the first chapter, "Overview of the duty of care of the trustee of business trust", the first section describes the concept and content of the duty of care; The second section begins with the necessity of perfecting the duty of care of the trustee of business trust, and analyzes the significance of establishing the duty of care in the legislation of modern economic development. The second chapter is "the legislation and evaluation of the duty of care of foreign trust trustees". The first section is a comparative study of the contents of the duty of care in the trust laws of the United Kingdom, the United States and Japan. The second section mainly analyzes the standards of the duty of care and the positive practice of the duty of care in common law countries. The third section "the legislation status and existing problems of the duty of caution of the trustee of business trust in our country", the first section narrates the present situation of the duty of care of the trustee of the business trust in our country; In the second section, through the analysis of the present situation of the trust business in our country, we put forward the outstanding problems in the application of the duty of care in our country. The fourth section, "perfecting the legal countermeasure of the trustee's duty of care in our business trust", mainly from adopting the standard of the duty of care, establishing the standard system of the duty of care, determining the way of exercising the trustor's right to know and the way of relief. This paper discusses the implementation of the duty of care of the trustee of supervising business trust from four aspects of establishing the system of external expert examination.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.282
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