If the trust company fails to perform the due diligence and due diligence obligations stipulated in the trust contract, the trust company shall compensate the losses caused by its inherent property, and the investor shall bear the insufficient compensation.
The establishment of a trust company has the following risks:
1, policy risk. Refers to the risks brought to trust business by changes in fiscal policy, monetary policy, industrial policy and regional development policy.
2. Legal risks. For trust business, its legal risk mainly refers to the uncertainty caused by the imperfection or revision of trust law and its supporting system on the legality of trust business and the safety of trust property.
3. Market risk.
4. Credit risk.
The meaning of fiduciary duty:
Brief introduction Trust responsibility refers to the trustee's responsibility to manage the property of the principal/beneficiary in strict accordance with the wishes of the principal (not the trustee). Once the trust relationship between the principal and the trustee is established, the trustee assumes the trust responsibility.
Since the implementation of People's Republic of China (PRC) Trust Law on +0, 65, 438+0, 65, 438+0, trust activities have become increasingly frequent, and trust plays an increasingly important role in real estate development, financial leasing, infrastructure construction, securities investment and other fields.
In the process of engaging in trust legal services, it is often found that employees, lawyers and judges of trust companies have different degrees of understanding of the concept of trust and trust legal relationship, and some even have completely opposite understanding positions. This situation is of course directly related to the positioning of trust in China's civil law system and the lack of applicable rules of trust law in trust legislation itself. However, the natural mission of trust practitioners and legal workers determines that we must make a realistic judgment on the legal application of trust relationship based on the current legal environment.
Interpretation of trust and its legal relationship;
(1) Trust is an independent property management system.
Article 2 of the Trust Law of People's Republic of China (PRC) clearly stipulates that the term "trust" as mentioned in this Law refers to the act that the trustor entrusts his property rights to the trustee based on his trust in the trustee, and the trustee manages or disposes in his own name for the benefit of the beneficiary or for a specific purpose according to the wishes of the trustor.
According to the original intention of trust legislation in China, trust is defined as a property management system. The second part of the General Provisions of the Interpretation of the Trust Law of People's Republic of China (PRC) by the Legislative Affairs Committee of the National People's Congress has the following statement: "To understand the definition of trust, we can grasp its basic characteristics from the following aspects: First, trust is a property management system managed, used or disposed of by others." .
The way of property management embodied in trust is: the client entrusts his property to the trustee for management, and the trustee and beneficiary complete the distribution of property rights, that is, the client enjoys the possession, use and disposal of property rights; Beneficiaries enjoy the right to benefit from property rights. The introduction of the first part of the Interpretation of People's Republic of China (PRC) Trust Law states: "What is considered in the trust relationship is the property rights entrusted by the client, including both tangible property and intangible property, or the rights that have certain material contents and directly reflect certain economic interests. The contents of property rights are: first, the actual right to use property; The second is to obtain the beneficial right of property income; The third is to implement the power of property management; The fourth is the right to dispose of property. These four rights have concrete and rich contents, which can form different scopes and different levels.
These four rights can be separated, exercised separately or merged separately. In a trust relationship, the client entrusts property rights. As for the four rights it contains, the specific content, scope, depth, way of exercising rights, power granted and restrictions imposed are very flexible, and many choices can be made, and this flexibility and this right of choice are used by the client. In other words, the owner of the property called the client has the right to independently decide the specific content and method of using the trust for his property according to legal rules. The entrustment in this trust relationship can reflect the characteristics of trust and reflect the essential attributes of trust. It can be seen that the essential attribute of trust is the division, disposition and management of property rights.
(2) The trust legal relationship is a special civil property legal relationship.
According to People's Republic of China (PRC) Trust Law, the parties to a trust are composed of the trustor, the trustee and the beneficiary.
According to People's Republic of China (PRC) Trust Law, the object of trust is property ownership or property ownership right.
According to the definition of trust, the essence of trust is property management system.
Therefore, the legal relationship of trust is a legal relationship of trust property management, which is centered on the trust property and composed of the principal, the trustee and the beneficiary. The introduction of the first part of the Interpretation of People's Republic of China (PRC) Trust Law points out: "Trust relationship is a legal relationship centered on trust property." "Trust relationship is a legal relationship centered on trust property and composed of three aspects: the principal, the trustee and the beneficiary."
Second, the position of trust in the civil law system and the application of law.
(1) The property management system embodied in trust belongs to the property ownership system established by China's civil law system, and is not a debt and contract system aimed at establishing creditor's rights and debts.
From the contents of the legislative system established in General Principles of Civil Law of People's Republic of China (PRC) and General Principles of Civil Law, we can see that China's civil law system is composed of civil subject system, property ownership system, debt and contract system, intellectual property system, property inheritance system, civil liability system and other civil law systems such as civil legal act, agency and prescription.
The property management system embodied by trust is the concrete form of property ownership system, so the content of trust legal relationship belongs to the category of ownership legal norms under the framework of civil law system.
It can be seen that trust is a property management system based on the theory of ownership in civil rights, rather than a contract system based on the theory of creditor's rights in civil rights. The legal relationship of trust directly reflects the legal relationship of property management, not the legal relationship of creditor's rights and debts contract.
(2) The establishment of trust legal relationship is regulated by trust law, not by contract law.
Trust law is a special law with legal norms of ownership in the civil law system. According to the basic principle of law application, if there are provisions on the same legal relationship, common law and other special laws of the same rank, the provisions of other special laws should be given priority; Where the special provisions in the same legal norm are inconsistent with the general provisions, the special provisions shall apply.
On the one hand, trust law has perfect and comprehensive norms on the establishment of trust property relationship and the protection of rights and obligations of trust parties, and the contents of these norms are significantly different from those of general principles of civil law and contract law.
On the other hand, the trust legal relationship is established in written form. The trust law stipulates that the trust contract, will or other written documents stipulated by laws and administrative regulations must be adopted to establish the trust legal relationship. Although the trust legal relationship can be established in the form of contract, it is a special civil legal relationship, which is different from the contractual legal relationship established in People's Republic of China (PRC) Contract Law. In this regard, the second part of the General Provisions of the Interpretation of the Trust Law of People's Republic of China (PRC) by the Legal Affairs Committee of the National People's Congress makes a distinction: "Trust contracts have their own special circumstances compared with general contracts, mainly: general contracts.
Legal basis:
Article 2 of the Trust Law of People's Republic of China (PRC) * * * The term "trust" as mentioned in this law refers to the act that the trustor entrusts his property rights to the trustee based on his trust in the trustee, and the trustee manages or disposes in his own name for the benefit of the beneficiary or for a specific purpose according to the wishes of the trustor.
Article 32 When handling trust affairs with the trustee, * * shall be jointly and severally liable for the debts of the third party. The expression of intention made by the third party to one of the trustees is equally valid for the other trustees. * * * If one of the trustees disposes of the trust property in violation of the trust purpose or causes losses to the trust property due to violation of management duties and improper handling of trust affairs, the other trustees shall be jointly and severally liable for compensation.
Article 36 If the trustee disposes of the trust property in violation of the trust purpose or causes losses to the trust property due to violation of management duties or improper handling of trust affairs, he may not ask for remuneration before restoring the trust property to its original state or making compensation.
Article 37 The trustee's expenses for handling trust affairs and debts to third parties shall be borne by the trust property. If the trustee pays in advance with his inherent property, he shall have the priority to be compensated for the trust property.
The trustee's debts to a third party or losses incurred due to violation of management duties or improper handling of trust affairs shall be borne by his inherent property.