A Study Of Constructive Trust On Equity

Constructive trust is one of very important machinery in reaching civil remedies on equity.This thesis focus on the illustration of the whole legal system of the constructive trust andrule/ principle and situations for its arise or operation, therefore, analysis will be on whetherconstructive trust can be adopt or transplant into Chinese civil law to some extents.The constructive trusts origins from the demand of morality over the trustee in the society andhas moral colors. Modern constructive trust extends to commercial area for protectingbeneficiaries from professional misappropriation. Constructive trust primarily showing itproprietary interest and secondly personal interest make it as a vehicle for ascertaining theproperty without paying expensive litigation. When constructive trust is ordered by a court,the property still belongs to or occupied by the trustee/or fiduciary, the proprietary nature ofconstructive trust makes the claimant's rights priority against general creditor of thetrustee/fiduciary;the property shall not be insolvent property when trustee or fiduciary inbankruptcy;proprietary nature of constructive trust lost when the property in issue istransferred to innocent third party with consideration, then what beneficiary has is claimrights against trustee /or fiduciary for personal liability.Can constructive trust be transplanted into Chinese civil system? If yes, to what area,substantive law or procedure law? Or at legislation level or jurisdiction level? Iftransplantation at jurisdiction, how does Chinese judger apply it by considering the factor thatconstructive trust itself is a product of judger's judicial discretion on Equity? Can constructivetrust overlap the area left by the unjust enrichment? How to compromise it with the principleof innocent third party, and the rule of unjust enrichment, and the rule of one property oneownership? This thesis invites to consider the possibility of transplantation and finally providea suggestion that high possibility of transplantation of the constructive trust into procedureinstitution in civil law in China, and specific transplanting point is on the area of unjustenrichment.