| Trust is a system of property transfer and management arising from the common law Equity system.Trust is a financial system,but also a legal system,but in the final analysis is a specific financial system.Due to the unique role played by economic development and social progress,many civil law countries have been concerned about,studied and transplanted the trust system.In 2001,the "trust law" after 8 years of research and demonstration promulgated,making China's trust activities into the system of the times.In China,when mention about the "trust",the first thought is "trust and investment company","trust fund" and other commercial applications,especially in the trust relationship to build a variety of financial instruments.However,in the countries of common law system in the history of the early trust is from private life in the field of civil trust began to flourish,writing a trust accordingly to civil trust as the center,even in the "trust law" will be excluded from the restatement of commercial trust outside the scope of the trust.This is not because of the common law commercial trust is not developed,but the commercial trust in these countries has not yet formed the overwhelming dominance of civil trust,the general rules of the civil trust system can also be seen as commercial trust.China's "trust law" clearly influenced the way of legislation,did not make special provisions on commercial trust,but an important purpose of introducing the trust system in China is to promote the development of investment funds and other financial innovations,the reality has proved this orientation.The "trust law" the implementation of more than ten years,with China's trust in the field of business is far more than the civil trust in recent years,family trusts and other civil trust is active.This makes us have a doubt: the current "trust law" for a large number of commercial trust exist in the market really universal?The perfect commercial law can provide a set of basic rules that can be followed for the operation of a country's market.At the same time,the adaptability of commercial law requires that commercial law must closely follow the economic development of a country,when the international and domestic markets as well as changes in the level of science and technology,our rules can not be immutable.If the examination of the ten years of judicial court found,involving trust disputes are not uncommon,but to "trust dispute" case on only a small part of which directly invoked the "trust law" provisions as the basis of decision is even fewer.In some typical cases,the "trust law" can be used to constitute the basic legal relationship,but not resolved.So Judicial Dilemma,the court still need to borrow the basic legal principle contains contract law or other laws in the judgment,many of the provisions are the “sleeping beauty”.Based on the dominant position of commercial trust in China,whether the "trust law" is the effects regular,it is worth further consideration.In addition,the developed countries in the past 30 years have also begun to look at the commercial trust independently.For example,more than half of the states in the United States have enacted a special law on Commercial Trusts,a landmark "model law on Commercial Trust",which was published in 2009;In 2006,Japan conducted a "trust law" the implementation of the eighty years the largest revision,continue to improve the trust in commercial use on the basis of morphology,trying to provide a "unification" of the trust platform.The legislation reflects a common concept: Commercial Trust has its own uniqueness,but also the need to tailor the trust law to regulate.In fact,the reality of the development of China's legal research has not been neglected commercial trust,but more limited to the property law or commercial law behavior,although the results of many achievements,but for the market in the field of commercial trust activities and dispute resolution,still cannot provide sufficient theoretical explanation and theoretical basis.In this paper,through the study of related issues,we can better understand the commercial trust system in order to provide theoretical support for the legislation,judicature and practice of commercial trust.This paper consists of introduction and five chapters.Chapter one is the system foundation of commercial trust.The first section defines the concept of commercial trust.For the purpose of private profit-making,the trustee transfers the trust property to the trustee and obtains the consideration,the trust that the trustee actively manages the trust property and then pursues the beneficiary's growth is the commercial trust.On this basis,commercial trust is compared with civil trust and business trust.And the commercial trust and similar systems,such as commission,commission made a legal distinction.The second section analyzes the system function.Commercial trust has the function of property transfer and property management,and has the application function of financing funds and inheritance of wealth.The third section examines and probes into the legal nature of trust.Introducing three theories of property theory,contract theory and organization theory in common law system;the subject of law and the theory of "property right—creditor" in the continental law system.The second chapter is the evolution track of Chinese and foreign commercial trust system.To really understand a thing is to begin with its history,and trust is no exception.The first section introduces the origin and development of the British Trust system.Influenced by the legal tradition,the vast majority of the legal forms of the British trust still exist in equity.So far there is no trust code in Britain,nor is there a unified trust law or trust law.The second section takes the United States as an example to analyze the evolution of the system in the common law countries.As a common law country,the United States has successfully introduced the trust system,and its form of trust is mainly commercial trust.The United States,following the traditional trust system of England,has been transformed into the most developed country in the world.The American trust law has developed the organization,operation and responsibilities of the commercial trust.The statutory commercial trust is one of the most important contributions of the United States to the trust law.The third section takes Japan as an example to analyze the evolution process of the civil law countries.Japan is the most developed country in the trust industry in Asia.It is a successful example of the trust system transplantation in the civil law countries and the first country in the continental law system to introduce the trust law.The amendment of 2006 established many commercial trust inherent rules as general rules.The Commercial Trust Law of the civil trust law itself has been recognized,that is,the so-called "commercial phenomenon".This will not only help to understand the legal system of trust and the relevant legal system of trust,but also have a great influence on its development and future direction.The fourth section is the evolution process of China's commercial trust system.Combing the process of China's trust business and the evolution of the system.The fifth section compares and analyzes the similarities and differences of commercial trust between China and foreign countries.In the history of the formation and development of common law system,common law and Equity Act on different levels,they complement each other and check and balance each other.This makes the Common law system highly flexible and hence breeds a very flexible trust legal system.In the trust system,the two major legal systems have both common ideas and mutual differences.In recent years,countries have generally adopted the commercial trust codification model of legislation,and combined with the actual situation of the country,the trust law has been designed in a localized way.At the same time,because of the development of commercial trust,various countries have carried on the commercial reform to the trust legal system.The third chapter is the practice and legal dilemma of the commercial trust system.The first section introduces the market practice of commercial trust in our country.This paper sorts out the trust types and division standards in our country's market,and analyzes the legal mechanism of several trust schemes and several kinds of special trust types.On the whole,the whole picture of the trust market is set up.The second section is the judicial practice of commercial trust in our country.The present situation of applying the trust law in commercial trial is introduced.Generally speaking,there are few typical trust disputes,and few cases apply in the trial of trust law.Through several typical cases,this paper analyzes the focus of some legal disputes and the difficulties of applying the law.The third section analyzes the Legal Predicament of the commercial trust system in our country,mainly reflected in the following aspects: the disconnection of legislation,judicature and Practice;the deviation of the nature of Commercial Trust,the ownership of the trust property is ambiguous;the trust client's rights are too large,which leads to the imbalance of right allocation;the trust registration system not work;the attribute of trust beneficial right is not accurately defined;the definition of the property right of assets is not clear.The fourth chapter is the theoretical problem of the evolution of China's commercial trust system.The first section analyzes the institutional conflicts in the legal transplantation of commercial trust,mainly reflected in the following aspects: the conflict of legal tradition between common law system and civil law system;the double ownership principle of trust property and the conflict of the principle of one property and one right;the principle of independence of trust property and the conflict between the principle of separation of subject and object;the conflict between fiduciary duty of trustee and the principle of homogeneity relief.The second section looks at the independence of trust property from the theory of property right.The ownership of the continental law system is the paradigm of "property right creditor's right",and the power under ownership is not independent.Under the system of real right,the ownership of real right is divided into four functions: possession,use,income and disposal.The common law system deals with the decomposition of the right.As long as the right of economic interest is ownership,the ownership can be independently traded and transferred.The transaction is not the thing,but right,right of abstract and relative independence,run parallel transfer,and trade sanctions.The third section looks at the legal subjectivity of commercial trust from transaction cost theory.In the process of trust utilization and property disposal,the transaction cost is reduced and economic efficiency is improved through the specification of trust trustee and professional financial management technology.The dominant position of Commercial Trust once established,based on absorbing the trust mechanism,as a form of commercial organization,commercial trust has the independence of trust property,the trustee and the beneficiary of the trust limited liability and the internal governance mechanism of flexibility will be more widely used in the field of financial planning.The fourth section analyzes the trend of the evolution of China's commercial trust system.The legal logic of institutional evolution is the Chinese road to the rule of trust in commercial trust.There is a deep gap between contemporary China society under the rule of law and practice in western countries,so the construction of rule of China may not repeat the construction of rule of law in western countries,the practice of the rule of law must choose their own path according to the situation of China.The value choice of institutional evolution is to realize the efficiency of wealth management.The basic path is to establish the legal subject status of commercial trust.Establishing the legal subject status of commercial trust is helpful to solve many problems in the process of trust transplantation.The fifth chapter is about the legal choice of the commercial trust system.The first section analyzes the endogenous incentive of commercial trust in institutional evolution in china.Looking for local resources from ancient history,and also looking for social needs from social reality,and analyzing the social obstacles that hinder the development of commercial trust,there are industry unspoken rules,such as rigid payment.The second section is the reform direction of legislation.It is suggested that the legislation model of chapter of commercial trust should be added in the trust law to stipulate the particularity of commercial trust.In addition,we must make clearly the legislative principles,improve the industry standards and make good use of authorized legislation.The third section is the design of specific system of commercial trust.We must improve the trust registration system,weakening the rights of clients of Commercial Trust,perfecting the fiduciary duty rules of the trustee,guarantee the realization of the beneficial right of trust.The fourth section deals with the solution to the dilemma of law in commercial trial.Conclusion part shows that the commercial trust has a strong vitality and is an important tool for the preservation and appreciation of wealth.It is of great practical significance to study the legal system of commercial trust.It is necessary to establish the legal subject status of commercial trust,and to set up relevant supporting system according to the status of legal subject,so that the sufficiency and rationality of commercial trust theory will be more supported by legal theory.The construction of trust law will escort the trust industry,so that the trust industry will have its own development space and market,and it will become an old,traditional and emerging financial industry. |
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