Co-trustees'Duties of Fund Custodians from the Perspective of Custodial Structure
The custodian system of private equity funds originated from the Anglo-American law and has matured after years of development.China has successively introduced the role of custodians into public funds and private funds,taking Japan's one trust model as the basis for learning and absorbing the dual contract of Germany's custodian model while combining it with China's national conditions to form a'one trust'private equity fund custodial structure with Chinese characteristics.The relationship between the custodian and the management institution under this structure determines the manner in which the custodian's responsibilities are undertaken.Both the custodian and the management institution are the investor's trustees under this system and at the same time they constitute the co-trustees in the sense of the Trust Law,which means they should bear joint and several liabilities for the investors.The article 145,paragraph 2 of Securities Investment Fund Law of China which provides for joint and several liabilities based on joint and several acts,is outdated and should be gradually updated to a'co-trustee'basis,clarifying the co-trustee status of the custodian,in order to promote the sound development of the private equity fund market and the health of the whole financial system better.
contractual private equity fundscustodianliability of custodiansco-trustee
NETL
NSTL
万方数据
