The Research On The Constructive Trust-in The Perspective Of Judicial Techniques

On the base of equitable judicature, by the comparative and the practical analysis, and in the perspective of judicial techniques, the book tries to reveal the rules of constructive trust, which have been intentionally or unintentionally adopted in the judicial practice, to demonstrate the value and functions of it, and to prove accordingly its possibility, necessity, and realistic significance, of which constructive trust is introduced to our country's legal system.The author holds that the equity law is aimed to realize the justice in each legal case, or in the other words, the substantial justice, and it came into being due to the reason that the law, as a general rule, is inevitably inflexible. In now days, the high frequency of appeal in China related to litigation, has become the best barometer to show it. Chinese people long have a systematic thought of'justice'to demand a fair result, which is just the equity or justice of Chinese people. The status quo in China is similar to the background then in Briton, where the equity law was born, so that the research on constructive trust, as the protective system of the property law in equity, can not face the incompatibility, which will always happen, when we implant oriental experience into law system and legal concept of the west world, because the judicature equity or equity remedy has its historic foundation, ideology motivation, and realistic demands.The author makes the point that the constructive trust appears, when the use of equity law is expanded, the main reason of which is that deceit and unjust enrichment are forbidden. It results in the equitable fact that the estates are apportioned between parties, and at meantime comprehensive remedies are available for them, so that it will be extensively applied in the social reality and the judicial practice. Except for the preface and the conclusion, the book has 4 chapters, the main content of which is:Chapter 1 is the theoretical base of constructive trust. In the chapter, the author briefly intrudes its concept and relation to the other kinds of trust, and then discusses its origination background, characters, and the rules of establishment. Therefore we will have a general idea about constructive trust.Chapter 2 is about the necessity to introduce constructive trust. The part 1, 2, 3 in the chapter separately discuss the issues in social reality, such as the property rights of the state owned enterprises and the financing trust etc., the problems and disputes in judicial practice , and also the legal system in existence, and from these aspects.Chapter 3 is about the approaches of constructive trust to be introduced to our country. Analyzing the cases in a varied way, the article discusses the application of constructive trust in judicial practice comprehensively, such as in the case of conjugal family, nonmarital couples, and commercial affairs, meanwhile indicates, in details, the conflicts between constructive trust to be introduced and the legal system now in existence (e.g. constructive trust vs. legal principle of real right, constructive trust vs. unjust enrichment, constructive trust vs. principle of "one thing, one right" etc.), and the way to settle them.The chapter 4 is about the improvement of civil remedies in our county by introducing constructive trust. The article analyzes the value of constructive trust in improving our county's civil remedies system, and then discusses its effect on the equitable judicature in our country.