As Chinese practitioners and scholars ponder the scope of fiduciary obligations under the country’s company law,this paper offers a comparative perspective from German law.Although German corporate law has not reject...As Chinese practitioners and scholars ponder the scope of fiduciary obligations under the country’s company law,this paper offers a comparative perspective from German law.Although German corporate law has not rejected legal transplants,the common law trust has never been accepted as an organizational device for administering third-party funds or doing business.Nonetheless,the German judiciary has developed a sophisticated concept of fiduciary obligations where the statutes remain silent.This paper explores the application of fiduciary obligations to limited partnerships,limited liability companies,and stock corporations.It takes a membership perspective to ascertain the legal relationships between a corporation and its shareholder-members and among fellow-shareholders,as business entities evolve from personalistic to capitalistic settings.Fiduciary obligations also inform the relationship between the corporation and its directors and corporate officers.Although German law does not classify directors and corporate officers as the shareholders’direct trustees,shareholders stand nonetheless to benefit from the way directors and corporate offices discharge their duties towards the respective corporate entities.Moreover,criminal law rules on embezzlement operate to protect the corporation and the monies it administers from overly risky business projects.展开更多
Trust is the greatest and most distinctive achievement of English law,grown and developed over the passage of time,to meet new demands towards providing new solutions to problems,resulting in its widespread and invent...Trust is the greatest and most distinctive achievement of English law,grown and developed over the passage of time,to meet new demands towards providing new solutions to problems,resulting in its widespread and inventive use worldwide.Although the trust system was introduced by the enactment of a specialist Trust Law of the People's Republic of China in 2001,there is no significant growth in the use of the trust system in civic life.The personal fiduciary relationship between the settlor and trustee is the foundation of a trust.The trustee has an affirmative cquitable duty to act solely in the interest of the beneficiaries.Whether people can rely on the trust system and use it universally is highly dependent on a trustee's fiduciary duty.In the United States,thirty-four states and the District of Columbia have adopted some substantive provisions of the very valuable Uniform Trust Code(UTC).To promote the development and appropriate application of Chinese Trust Law,this article examines the differences between trustee obligations under the American UTC and Chinese Trust Law,and then proposes the amendment suggestion for Chinese Trust Law.This article consists of five parts.In addition to the Introduction,Part I of this article overviews the provisions of a trustee's fiduciary duties in Chinese Trust Law.PartⅡdiscusses and compares the differences and similarities on trustee's fiduciary duties in Chinese Trust Law and the UTC.Part Ⅲ explores the comparative consideration of a trustee's fiduciary duties,and provides the proposals for legal reform.Finally,this article brings forward a brief conclusion.展开更多
The existing literature on fiduciary law focuses primarily on commercial settings,and fiduciary principles in the area of family law have seldom been considered.This essay sheds light on the fiduciary principles in Ch...The existing literature on fiduciary law focuses primarily on commercial settings,and fiduciary principles in the area of family law have seldom been considered.This essay sheds light on the fiduciary principles in Chinese family law.There is a set of classic fiduciary duty rules under Chinese family law,such as conflict-of-interest rules and remedies for fraudulent transfers.There are also two special sets of rules that might be considered candidates for traditional fiduciary principles in family law,namely the rules on property distribution in a divorce and the rules on property management for different family members.Moreover,the duty of loyalty in Chinese family law,as well as in many other civil law jurisdictions,is much broader in scope than the traditional duty of loyalty under the common law.This broad duty of loyalty includes the duty of sexual fidelity,the duty of notification about certain sexual activities of one spouse during or even before marriage,and the duty of support between family members.This difference may go back to the historical distinction between law and equity,as well as the logical appropriateness of a broad understanding of the term“loyalty.”展开更多
文摘As Chinese practitioners and scholars ponder the scope of fiduciary obligations under the country’s company law,this paper offers a comparative perspective from German law.Although German corporate law has not rejected legal transplants,the common law trust has never been accepted as an organizational device for administering third-party funds or doing business.Nonetheless,the German judiciary has developed a sophisticated concept of fiduciary obligations where the statutes remain silent.This paper explores the application of fiduciary obligations to limited partnerships,limited liability companies,and stock corporations.It takes a membership perspective to ascertain the legal relationships between a corporation and its shareholder-members and among fellow-shareholders,as business entities evolve from personalistic to capitalistic settings.Fiduciary obligations also inform the relationship between the corporation and its directors and corporate officers.Although German law does not classify directors and corporate officers as the shareholders’direct trustees,shareholders stand nonetheless to benefit from the way directors and corporate offices discharge their duties towards the respective corporate entities.Moreover,criminal law rules on embezzlement operate to protect the corporation and the monies it administers from overly risky business projects.
文摘Trust is the greatest and most distinctive achievement of English law,grown and developed over the passage of time,to meet new demands towards providing new solutions to problems,resulting in its widespread and inventive use worldwide.Although the trust system was introduced by the enactment of a specialist Trust Law of the People's Republic of China in 2001,there is no significant growth in the use of the trust system in civic life.The personal fiduciary relationship between the settlor and trustee is the foundation of a trust.The trustee has an affirmative cquitable duty to act solely in the interest of the beneficiaries.Whether people can rely on the trust system and use it universally is highly dependent on a trustee's fiduciary duty.In the United States,thirty-four states and the District of Columbia have adopted some substantive provisions of the very valuable Uniform Trust Code(UTC).To promote the development and appropriate application of Chinese Trust Law,this article examines the differences between trustee obligations under the American UTC and Chinese Trust Law,and then proposes the amendment suggestion for Chinese Trust Law.This article consists of five parts.In addition to the Introduction,Part I of this article overviews the provisions of a trustee's fiduciary duties in Chinese Trust Law.PartⅡdiscusses and compares the differences and similarities on trustee's fiduciary duties in Chinese Trust Law and the UTC.Part Ⅲ explores the comparative consideration of a trustee's fiduciary duties,and provides the proposals for legal reform.Finally,this article brings forward a brief conclusion.
基金The National Social Science Fund of China for research funding(16CFX054).
文摘The existing literature on fiduciary law focuses primarily on commercial settings,and fiduciary principles in the area of family law have seldom been considered.This essay sheds light on the fiduciary principles in Chinese family law.There is a set of classic fiduciary duty rules under Chinese family law,such as conflict-of-interest rules and remedies for fraudulent transfers.There are also two special sets of rules that might be considered candidates for traditional fiduciary principles in family law,namely the rules on property distribution in a divorce and the rules on property management for different family members.Moreover,the duty of loyalty in Chinese family law,as well as in many other civil law jurisdictions,is much broader in scope than the traditional duty of loyalty under the common law.This broad duty of loyalty includes the duty of sexual fidelity,the duty of notification about certain sexual activities of one spouse during or even before marriage,and the duty of support between family members.This difference may go back to the historical distinction between law and equity,as well as the logical appropriateness of a broad understanding of the term“loyalty.”
