How To Balance The Conflict Between Trust Law And Property Law

Trust is a legal devise deriving from England in the Middle Ages in order to transfer and manage property. In the modern society, because trust plays a significant and unique role in managing property, raising funds and increasing social benefits, more and more civil law countries begin to put emphasis on trust and intend to introduce such into their legal systems. However, in light of trust's separation of ownership theory that conflicts with traditional sole ownership theory in the civil law system, the transplantation of trust invariably gives rise to many difficulties in a number of civil law countries. China is no exception. Though the method of historical analysis and comparison, this article elaborately discusses the relationship between trust and civil law system, especially the property law, and suggest stipulate the general rules of property, a legal system introduced from Anglo American law, as a solution to solve the foresaid contradiction. This Article is consisted of three parts as set forth bellow: The first chapter of this article mainly introduces the development of trust in English law and analyses the right held by trustee and beneficial as well. At first, this article generally introduces the three developing phases of trust in English law, which can be divided into the ancient Use stage, the formation stage of trust after the enaction of the Statute of Use and the developing stage of trust. This section also presents the problem of separation of ownership. The second section of this chapter mainly analyses the ownership conception in Common Law and Equity and the relationship between them after observing the separation of ownership theory in English law, thus concludes that conception of ownership in English property law is different from it counterpart in the Civil Law System. The object of property in English law is right rather than thing, therefore, the separation of ownership theory can prevail in English property law.The second chapter hereof involves the issues of transplantation and localization of trust, the theory of which is discussed in the first section, while the practices of which in Japan, Scotland, Quebec of Canada and China are largely incorporated in the second section of this chapter.The third chapter detailedly analyses the balance of conflict between trust and property law in civil law countries. In the first section of this chapter, after carefully researching the contradiction between trust and property law, this article has found that such contradiction is caused by the limitation of current civil law system, which in theory can be settled by two different solutions, to localize the trust or to alter current civil law system. After analyzing these two solutions in all aspects as set forth in the second section of this chapter, this article denies the viability of the localization solution and regards the modification of current civil law system as the only way to solve such contradiction. The best modification method is to introduce the conception of property from the Anglo American legal system and enacting the general rules of property while stipulating the Civil Code of the People's Republic of China.