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Discuss On The Guarantee Function And Realization Of Trust

Posted on:2019-02-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:H WenFull Text:PDF
GTID:1366330545453652Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The system of trust emerges a charming luster from the beginning of its birth.There are a lot of views of the origin of trust,and it is generally agreed that "the rule of land use" in Medieval England is the rudiment of modern trust system.Although the early trust puts up some passive-head-borrowing and implies several negative circumstances,but in pace with the progressing of the era and the development of the economy and society,the functions of trust system experiences great changes in the course of its evolution.This process represents that the function of the originally simple property management shifts towards investing and innovative financing,as well as the function of serving the society.Among the functions of trust system,it is an important one to protect the property and guarantee the interests of the creditor.In the period of Roman Law,Fiducia is an important creation which used the form of trust to realize the purpose of security,that is to say,the debtor may limit the transfer of the collateral's ownership in the way of trust.However,due to the twice transfer of the ownership of the trust property and emphasize on the protection of the interests of creditors too much,Fiducia had been replaced by Transferring Guarantee,Pledge or other security methods gradually.But it is undeniable that Fiducia is the rudiment of many modern security methods,which laid a solid foundation for the study and the use of the guarantee function of trust.Why are trust and security having such an historical origin?It is because that there are something in common between them.The two institution both contain the trust and credit of "human",and are inseparable from the control and utilization of"substance".At the same time,due to the wide and numerous purposes of trust,thus different kinds of trust have been established,created and widely used.In countries such as Britain and the United States,trust is an important tool of commercial transaction,as well as the value of guarantee.For example,Trust Receipt is a common personal estate security in the import and export of these above countries.Furthermore,the countries in common law system have also created many new forms of trust for guarantee through commercial practice and judicial precedents,such as Qusitclose trust,Trust Deed and Equipment Trust.On the basis of fully understanding and recognizing the trust system and its functions,the countries or regions of civil law system also create a great deal of security methods like Guarantee Trust and Trust Possession.It is worth mentioning that,as the derivative nation,Japan is successfully referencing and adopting Corporate Bond Trust of the common law,and it has already been the characteristic part of its legal system.Among the characteristics of the trust system,the independence of trust property is the most significant symbol in the trust relationship.There are two kinds of definitions for the independence of trust property,which consists of broad sense and narrow sense.And the broad sense is the general view at present,which means that the trust property exists independently between the inherent property of trustor,trustee and beneficiary,and excludes the claims of their creditors directly.Because of the independence of trust property,the profit and loss of trust property and its enforcement must follow certain rules.The limited nature of the fiduciary duty and the separate accounting and management of the trustee are the inherent requirements,the actual demand and embodiment of the independence of the trust property.In addition,the notification of trust property is another derivative rule of the above characteristic.Revealing the facts to the public that a property has been set up in trust with a scientific and reasonable method,is not only conducive to the stabilization,convenience and efficiency of transaction security,but also to protect the interests of beneficiary with exercising the right of revocation.It is still an effective way to supervise the performance of trustees' duties and to prevent the malicious infringement of external relationships.The beneficial right of trust is a sum of beneficiary's rights,so the academic circles presents diversified characteristic about the nature of the trust beneficial right.In fact,making the trust beneficial right as a special right in rem doesn't break through the legal doctrine of the real right limitation,and is more advantageous to protect the beneficiary's interests and strengthen the function of trust for security.Consequently,relying on the above characteristics of trust and designing special types of trust for guarantee,can achieve the purpose of securing debts completely.The function of security and the way of security belong to different legal categories.The former one has flexibility and subordination,and the latter one shows systematic and regular rules.Compared to the traditional real right for security,the guarantee function of trust has dual attributes containing personal and material insurance.The personal insurance embodies the control of trustee's rights and obligations,while the material insurance epitomizes the relevant qualities of the trust property.Moreover,the guarantee function of trust can make up for some deficiencies of typical and non-typical guarantee in the scope of the property,the way of setting up,the publicity and the settlement of claims,etc.However,several incompatibility between the concept of trust and the traditional theory of civil law,the legislative attitudes and some problems in the current trust legislation may limit the utilization of the guarantee function of trust.Thus,it is the urgent needs to achieve the localization,clear the legislative attitude and explore different ways of the guarantee function of trust in our country.For example,improving the businesses of Trust Loans,Trust Receipt and affirming the legitimacy of pledge of the beneficial right of trust,along with the purchases of resold beneficial right,financing lease trust,the voting-right trust and lending trust.In short,the trust system has a natural function of bankruptcy isolation,and the strong protection of the beneficiary can not be comparable to other property management.Based on these characteristics,the trust system makes the trust property in a state of relative stability and security,and be free from internal and external relations that may exert improper influences.The management and disposition of trust property with the loyal trustee can also ensure that the disposition of trust property is properly and reasonably,and it has excellent value of preserving and increasing.Make the creditor as the beneficiary and enjoy the beneficial right of trust are not only advantageous to protect the interests of the creditor,but also can effectively control and against the debtor for the interference and abuse of the collateral.These are all essential to giving play to the guarantee function of trust.Although there is no basis for equity in our country,yet how to keep the core of trust and how to use its guarantee function are the new propositions of this age.In addition,the worth of freedom and efficiency is no other than the guarantee value of trust.Of course,the establishment and realization of the guarantee function of trust,can not be separated from the conflict and coordination with the existing way of guarantee,is inseparable from the innovation of financial guarantee and the basic research of trust.Meanwhile,the form of freedom,ignorance of theoretical disputes and breakthrough of existing rules are helpful for security of commercial transaction.
Keywords/Search Tags:Trust, the Guarantee Function, Trust Property, Independence of Trust Property, the Beneficial Right of Trust
PDF Full Text Request
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