| Testamentary trust refers to a mechanism under which the testator transfers his property after his death to the trustee who manages and disposes of the property in purpose of the interests of beneficiary or specific purpose.Testamentary trust is striding across two fields in inheritance law and trusts law,which differences significantly from testamentary succession,testamentary bequest,testamentary management,broker,interestes of third party contracts.Testamentary trust existed in Roman law,but it was the prototype of the testamentary trust.Testamentary trust originated really from British usufruct system.In Anglo American countries,testamentary trust is generally applicable.With the development of society and economy,testamentary trust is gradually developing in Japan and Taiwan region.Testamentary trust is at a standstill in our country basically,it is mainly because that testamentary trust system legislation is imperfect,which results in increasingly prominent contradictions between the reality and needs of the system,therefore,a sound testamentary trust legal system should be particularly urgent.There is the necessity and feasibility of establishing testamentary trust system in China.Testamentary trust has many functions such as offsetting the deficiency of current inheritance law,protecting the autonomy meaning of the testator,the effective management of assets and investments,legal tax saving,promoting the development of public welfare undertakings.People accumulated relatively rich private wealth as trust property with the rapid economic development of China.The promulgation of the "one law and two regulations" provides a legal basis for the implementation of testamentary trust,the revision of trust law,inheritance law and other relevant laws and regulations provide a legislative opportunity for the improvement of testamentary trust system.The spiritual and cultural heritage focusing on sincere and trustworthy,the debate of justice and benefit,equality and friendliness suits the core cultural elements in the spirit of trust.The trust industry development in Chinese enhances the public awareness of testamentary trust.The diversified,multi-level wealth planning requirements of people stimulate the demand for the establishment of testamentary trust.At present,those laid the foundation for the perfecting testamentary trust.Trustor is the establishment of the legal relationship of testamentary trust.The intention of the trustor must be clear,but it does not mean that we must adopt a professional language.Based on the autonomy of private law and convenient transaction consideration,the manifestation of testamentary trust does not need the special provisions,it cannot be used on the "mandatory" in the trust law,but it should also respect the position of inheritance law,which can be the oral form,recording form,and so on.Testamentary trust is a unilateral legal act,when the trust was established and taken into force at the time of the death of the trustor.The trustor’s right has the non-succession.Although the difference between the two major legal systems is gradually shrinking in the continuous integration process,the direction of the pendulum is to find a balance between trustor’s wil and beneficiary interest.The will of the trustor should deserve special respect and consideration,and there is giving reaction of the rules in the aspects of property ownership of testamentary trust termination,changing of testamentary trust management method,dealing with the differences of opinions of the joint trustees,and recognition of spendthrift trust.Testamentary trust with freedom quality,is vulnerable to the abuse of trustor,therefore,regulatory measures should be taken in the following aspects.In order to protect the interests of the creditors,the system of creditor’s right of revocation should be established.In order to protect the interests of the real holder,it can let the trustee inherit the trustor’s defects of possession by ruling out good system applicable in the trust.As to testamentary trust against special portion,it should give the parties the right of deduction rather than simply confirm the part invalid.It should perfect the tax system and strengthen tax collection and management measures to regulate clients escape taxes in false trust.To balance the interests between the parties and maintain the overall interests of the society,the maximum duration of the will trust should be limited,and more than the maximum duration of the duration is invalid.Trustee is the implementor of the legal relationship of testamentary trust.The trustee plays a very important role in the testamentary trust legal relationship,the interests of the beneficiary and the realization of the trustor trust purpose are both dependent on the efforts of the trustee.Modern trust entrusts the trustee with more authorities,including discretion conferred on,at the same time it should carry on the corresponding standard to trustee duty,and take the objective,standardized,concrete trust duty as trust property security mechanism.On self-dealing,the self-dealing rule is the one of the incentives which is most likely to lead to a crisis of moral hazard of the trustee,and the law should take a strict stand on this issue.On personally management obligation,the trust property is managed in principle by the trustee.However if the trust documents has other provisions,the trustee may entrust others to manage.When trustee has the mistake in appointing or supervising the agent,the trustee shall bear the legal responsibility.On-respective-management obligation,not only between the inherent property of the trustee and the trust property must be managed separately,but so are between different trust properties.In the consequences of the violation of obligations,it should adopt the principle of presumption of fault liability,that is,the trustee can not prove that there is no fault in the occurrence of the damage,the trustee shall be liable for compensation.Fair obligation is not only reflected in the fairness of the distribution,more in the management of the fair.The fiduciary duty of confidentiality shall be according to law,and the trustee shall assume a very strict confidentiality obligation except that the confidentiality obligations of the trustee is restricted under statutory conditions.On the prior exemption of responsibility,neither some exemption terms of setting exempt trustees deliberately nor gross negligence in the testamentary trust is prohibiting.But whether general negligence liability is exempted depends on consensus of the right holder.On fiduciary duty rules,the trustees should undertake the responsibility by the personal property because of their personal fault arising from contractual liability and tort liability in testamentary trusts management process.If the trustee has no fault for the occurrence of the responsibility,he can pay with trust property or have the right to request compensation from testamentary trust property after payment.Beneficiary is the beneficial owner of the legal relationship of testamentary trust.Beneficiary in the testamentary trust is a pure enjoyment,while in a weak position,therefore,it is very important to construct the benefit guarantee mechanism in our country.The benefit right of the testamentary trust should be characterized as the nature of creditor’s right,which will not detract the protection of the interests of the beneficiaries.In order to safeguard beneficiary’s benefit as well as the transaction convenience,the testamentary trust publicity mode in the way of registration antagonism is reasonable.The trustor supervision mechanism has a deterministic vacancy in the testamentary trust,therefore,the surveillance mechanism of testamentary trust should be strengthened.On one hand,the supervision pattern of the trustee should be perfected,the new trustee has the responsibility to carry on the essential inspection and the attention to the front trustee trust business processing situation and the property condition.On the other hand,the trust supervisor system should be improved.Therefore,the trust supervisor’s qualification,rights,obligations and responsibilities,compensation and other contents should be detailed specification.Beneficiary’s security is inseparable from the relief mechanism.It will make the relief more fully that is establishing the beneficiary litigation system,refining the relief way of the beneficial right and building constructive trust relief mechanism suitable for Chinese national conditions.The legal framework of the testamentary trust system in our country is put forward.On the legislative mode,it is appropriate that testamentary trust placed in the inheritance law,because testamentary trust,statutory succession,and testamentary succession is property management system in nature,and inheritance law is used so widely and long that testamentary trust incorporated into the law of succession has more focus and influence.On the legislation principle,it should follow integration of unity and coordination,integration of discretionary and mandatory,integration of foresight and moderate.In order to promote the effective operation of testamentary trust,the trust tax,trust registration,credit system and other supporting systems should be improved. |
