Fiduciary Principles in Chinese Family Law

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.”

Certainty,Justice and the Law of Agency in the Chinese Civil Code:A View from England

The new Chinese rules on agency do not impose broad“fiduciary”duties on agents—instead,there are a number of specific provisions designed to protect the principal against particular abuses to which it is peculiarly vulnerable in the principal/agent relationship.Chinese law,thus,deliberately refuses to follow the lead of English law,which imposes very strict and wide-ranging fiduciary duties on agents.This paper argues that this is probably wise.English law has to be seen against a matrix of a system of commercial law which was forged on the anvil of international trade and commodity supply contracts,leading to a set of rules that prefer certainty of outcomes(and the avoidance of litigation)overachieving particular justice in individual cases(such as might have been achieved by subjecting English law to an overarching“good faith”principle).English commercial law is adversarial,not cooperative.This explains why,in a relationship that is characterized by cooperation,such as the principal/agent relationship,the general rules of English commercial law are replaced by wide,justice-oriented rules.A system that is already based on cooperation,for which Chinese law is almost paradigmatic,is likely much more adept at applying the general rules to the agency relationship than English law would be.

NATURAL LAW,BASIC GOODS,AND FIDUCIARY ALTRUISM

Even though fiduciary duties take the highest position in the spectrum of legal altruism,and legal fiduciary altruism sometimes differs from moral fiduciary altruism,natural law morality is not necessarily useless in helping to explain,determine,and justify concrete rules in fiduciary law.Five specific inspirations,in addition to divergences,can be drawn by a closer look at the seven basic goods of John Finnis,natural law theory.First,the basic good of life may help to determine the boundary of the best interest test under the duty of loyalty.Second,the basic good of play,in particular the distinction between business community and play community may help to justify the separate treatment between civil agency and commercial agency regarding the unconditional power of immediate termination.Third,practical reasonableness may help to explain the rule against set-off under the duty of no conflict.Fourth,different cultural notions of sociability may lead to distinct understandings with regard to the no-profit rule.Fifth,different attitudes towards knowledge in various religious beliefs may create distinct understandings about the burden of informed consent.

The Modernization of Trustee's Fiduciary Duties in the Chinese Trust Law:A Perspective from the Uniform Trust Code in the United States

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.

AN EXAMINATION OF RETAIL CLIENTS＇ INVESTOR SUITABILITY RULES IN THE COBS AND THE LESSONS FOR CHINA

Nowadays, the complexity of financial products makes it difficult for retail clients to identify investment risks, and there is an increasing tendency for firms, stipulated by the maximum profits, to recommend or enter into unsuitable transactions to or for retail clients while providing services of investment advice and portfolio management, which causes great losses to a significant number of investors. So, in the contemporary society, the investor suitability rules through which retail clients can purchase suitable financial products are the indispensable legal basis of investor protection. Currently, the regulations concerning investor suitability management in China have several problems, including the chaotic legal system, low effectiveness level and defective contents, which may make it difficult for suitability to be applied in justice and managed effectively. Since the UK＇s investor suitability rules in the Conduct of Business Sourcebook that apply to retail clients whose contents include requirements of obtaining retail clients＇ information, requirements of information to be provided to retail clients and criteria of assessing suitability are clear and comprehensive, the authors believe that the UK＇s experiences can provide a great enlightenment for China to better investor suitability management rules, including integrating legal documents and optimizing effectiveness level, rationalizing application scope, adding criteria of assessing suitability and revising specific clauses.