On The Trust Deed

According to the common law, the traditional view insisted that the trust is of no contractual. To some extent, the contractual of the trust was being covered up. In this paper, the author takes the traditional trust for contractual. With the development of modern trust, the function of trust had undergone enormous changes, which result to the contractual becoming obvious. By analyzing the definition, characteristics, traditional trust, modern trust, management of trust and the rights of the beneficiary, the author deems the contractual of trust reflects the reality that the modern trust is becoming the same as the contract in the respect of function, and the value orientation. On the above basis, the relative regulations of the Trust Law were being analyzed. And then, conclusion is given that the Trust Law in China has not reflected the characteristic of contractual and in line with the trend of modern trust. At last, according the relative regulation of the Trust Law of our country, Legislative proposals was proposed...This paper is composed of six parts. In The first chapter, the definition, characteristics were analyzed .The trust includes property relation and contract relation. The traditional view of common law prefers property relation, which must be covered up the contractual of trust. Therefore, the study of the nature of trust is started from the origin of trust. As a specific donation, the trust reflects the increments in trust relations.In the second chapter, this part is about the analysis on the contractual of trust. The historical development of traditional trust was inspected. Then, the author concluded that the basis or impetus of the trust is origin from the unanimity between consigner and assignee. By analyzing the reason of why the traditional trust didn't focus on the contractual, the author think the separation of dual ownership is just the occasional phenomenon, which couldn't be show the no contractual of trust. In the third chapter, with inspected the main characteristic of modern trust, the author consider the traditional trust has evolved to modern trust that buildup the characteristic of contractual and becoming the contract of property management. Secondly, from the point of legal principle, there has been existing fierce struggle between the two points of contractual and property. With the enlargement of contract concept, the modern trust is totally embodying the basic factors of contract. (The forming of the Consensual and ascertain.)Furthermore, the function of contract andthe modern trust becoming growing convergence, which not only reflect the trend of the common law but the civil law countries without the trust tradition. Therefore, various demurrals aiming to the contractual of modern trust actually are not persuasion.In the fourth chapter, starting from the rights enlargement of assignee, emphasis was put on the two core obligations, faithful and prudent obligation contractual. The modern trust of practice testified that the faithful and prudent obligation had to give way to the expressly or impliedly intention expressed in their trust contract respectively. The common law has no hard stipulation refer to whether the assignee breaks the obligation of trust. Undeniable facts show that analyzing the effectiveness of assignee's exception clause by the basic theory of contract is becoming popular. In this paper, the author considers the trust management is contractual. The faithful and prudent obligation of assignee is the necessary result of the rights enlargement of assignees. The essential is included in the implicit rules and the arbitrary rules could be described as a standard contract.The fifth chapter starts from concept and content of beneficial right, analyzes the feature of beneficial right, consider such right is established totally by promise, based on it, refutes the theory which thinks the tracing right of beneficiary under common law totally belongs to asset right. It thinks tracing right under common law is just the form for the beneficiary to enforce the trust agreement, it is realized by the form of constructed trust which can not decide the character of beneficial right; This chapter combines the most important rule in common law-the essence of common law is common axiom in people's conscience, and demonstrates the contractual character of beneficial right; at last, combines the cancellation right under civil law, thinks such right has the feature of contractual character completely.The sixth chapter based on the function of modern trust, thinks the increase of contractual character of modern trust not only reveals the value orientation of modern trust which means the pursue and attention to efficiency, but also reflects the feature that modern trust law is permissive law. This chapter combines the provision in china trust law, thinks value orientation of trust law in our country is coming into a wrong area, emphasizes particularly on safe but neglects efficiency which does not reflect the developing tendency of modern trust and contractual feature of trust, thinks contractual feature of trust shall be taken as theory basis for reconstructing value orientation of trust law in our country in macroscopic aspect; in microcosmic aspect, acomplete diagnose is necessary for trust law rules in China, clean, amend and perfect the provisions which don't conform to trust contractual feature, and raise concrete legislation advises to perfect trust law in China.