TRUST IN FIDUCIARY RELATIONSHIPS: VESTIGE OR CONCEPTUAL CORE

Abstract

This article examines the conceptual role of trust within the framework of fiduciary legal relationships and identifies prospects for expanding the scope of application of this institution in the context of the recodification of Ukraine’s civil legislation. The current Civil Code of Ukraine and the draft of the new Civil Code of Ukraine (Code of Private Law) restrict the application of the concept of fiduciary duties to the provisions of corporate law, without extending it to classic examples of fiduciary relationships in private law, in particular between lawyer and client, agent and principal, guardian and ward, doctor and patient. This discrepancy between the narrow legislative approach and the doctrine upheld by the Supreme Court gives rise to a conceptual conflict regarding the status of trust: is it a constitutive feature of these legal relationships, or merely an incidental one?
The aim of the study is to demonstrate that the institutional place of fiduciary relationships and the possibility of extending them to other spheres depend on the inclusion of trust within their conceptual structure. The object of the study is fiduciary legal relationships in private law, and the subject is the category of trust as a potential constitutive element. The methodological basis consists of general scientific (analysis, synthesis, induction, systemic-structural) and specialised legal methods: formal-legal, comparative-legal and historical-legal.
The study proposes a new understanding of the essence of fiduciary trust: the characteristics of the absence of control, dependence and uncertainty of actions are inherent in fiduciary legal relationships themselves, rather than in trust alone. A distinction is drawn between the proprietary and interpersonal concepts of fiduciary law based on the role of trust: in the former, it is merely a technical element of the transfer of interests; in the latter, it serves as the conceptual basis for the interaction between the parties. It is argued that the key feature of fiduciary relationships is the vulnerable party’s unilateral positive expectation that the fiduciary will not cause harm, which distinguishes them from contractual relationships, which are based on mutual expectations. The paradox of the national model is highlighted: the tendency of judicial practice towards an interpersonal understanding, whilst legislation simultaneously restricts the institution to the corporate relations.
The theoretical significance of the work lies in deepening the understanding of the nature of fiduciary legal relationships and systematising the two main approaches - the proprietary and the interpersonal. The practical significance lies in the proposal to enshrine provisions on fiduciary duties in a separate chapter of Sub-section 2 of Section III of Book Five of the Civil Code of Ukraine, which may be taken into account during the recodification process.