Research On The Application Of Law Of International Trust

Modern Trust originated in Britain, and is prevalent in the common law countries, but in civil law countries, many countries still do not know the trust legal system. It is a modern property management system which has property as the core, credit as the basis and commission as the manner. Also, it is a clever design to transfer and manage possessions and has strong adaptability and a wide range of social functions.Legal systems have borders, but human societies often have cross-border economical exchanges. The activities that people manage and transfer possessions are not only within the same country. Of course, it is accompanied by all kinds of legal problems.The article is divided into four parts, the first part overviews the emergence and development of the trust, and we can get a general understanding of the special legal nature of their possessions according to the historical background. This part introduces the different definition of the concept of the trust, the common law system pays more attention to the effect analysis while the civil law system pays attention to the elements of the definition. Meanwhile, in this part there is a brief introduction of the"Hague Convention"centralizing on the background and purpose of the Convention, and in China's trust legislation, it is not clear whether the ownership of the property is transferred.Through the background elucidation in the first part, we have learned that Trust is just the pride of the common law, while can not be accepted by the civil law system since it comes into being on the point of double-ownership. Therefore, the second part of this article gives a detailed analysis on the external manifestation of the conflict of international trust law. The conflicts of trust laws are mainly manifested in the legal ownership of the trust possessions, elements of the trust establishing and obligation of the trust, and the core of the trust is the ownership of the possessions. The main difference between common law and civil law lies in the existence of "absolute ownership." In civil law countries , "a right to a thing" ,property rights are so deeply rooted, while in common law countries where trust is widely used, the trustees and the trust beneficiaries share the ownership of the trust property, in theory, it is not inappropriate. To find a breakthrough from such an irreconcilable contradiction, the article points out that it is not always necessary to use the existing civil law to barely define such a new thing. Why not treat it as a right that is an independent right from the traditional civil law and has both creditor's rights and content rights and also the right that they both not contain?Since there is a legal conflict in existence, we have to face the problem of the application of international trust laws. This is the third part and also the core of the article. As there are conflicts in international trust laws, scholars have conducted a lot of research work in the application. After years, most jurists think that the trust should adopt the segmentation system in the application of the law, which means it is divided into the validity of trust, the management of trust and the understanding or explanation of trust. Although the segmentation system is the consistent application of the law, the legal principles applicable to specific countries is a hundred schools of thought contestation. It is divided into different rules apply, such as trust before one's death, testamentary trust, the express trust, implied trust, movable trust, the real estate trust and so on. Drawing on the experience of proper law on contracts, the first thing is to find the core of trust, which is trust possession. In this way, turning the movable and real estate possessions into the first tier is the most consistent with the purpose of the trust. First, we should sign movable and real estate possessions as primary, real estate directly applied to the location of the real estate trust, which is the most close; for movable possessions, according to segmentation system, in the light of the aforementioned validity, management and interpretation of the respective parties in accordance with the choice of privy's express or implication, the most close method linked to the case without a choice.After years of hard working, the 15th Hague Conference on Private International Law in 1984 passed the"Hague Convention on the Law Applicable to Trusts and on Their Recognition". In the convention, the application of the international trust law can be determined in accordance with the principle of party intention. If the applicable law without a choice, we should use the law which is most closely linked to it. The purpose is to be generally recognized by all countries in the world. Despite some shortcomings of one kind or another, th"eHague Convention"has progressive significance on the whole.In the fourth part, there is an analysis on the way how our country should solve the existing problem of conflict of international trust laws and policies. For one thing,"Trust Law"needs to improve the application part for international trust conflict as there is only a blank. The Article 91 of"Model Law on Private International Law"states:"The application of the trust law, firstly use the principle of party intension to choose the law. The privy's choice, should be in written form. Secondly, if the parties have not made a choice, then use the most closely linked principle to determine the applicable law.""Model Law"is similar to the"Hague Convention",The article points out that we should boldly absorb the outstanding mature international legislation; On the other hand, in order to make China's rules of private international law consistent with the international community, in my view, at the same time to improve the application of Trust Law in the domestic legislation, it is also necessary to join in the"Hague Convention".