Study On Resulting Trust In Equit

No matter in continental law system or in common-law system, there is so much demand of shifting property. And these two law systems institute laws correspondingly. Austin Scott said that the aim of constituting trust has no limited such as the jurisprudential schloar's imagination. In common-law system, the resulting trust, which is more flexible and more easier to manipulate than the regulations in continental law system, reflects the superiority of the trust which is originated from the common-law system properly. But because of the conflict of law system, most countries of continental law system import the express trust, exclude the implied trust such as resulting trust, constructive trust, to make sure the trust can adapt to national law as soon as quickly.Trust is a devisee of equity, its intrinsic quality is duty in equity. In the first part, the paper introduces the origination and the progress of equity, the second part analyzes the meaning of resulting trust, describes the concept of it, and compares it with statutory trust, implied trust, constructive trust. On the base of Megarry's judgement in Re Vandervell's Trusts(No.2)(1974), resulting trust is classified to presumed resulting trust and automatic resulting trust, the third part of the paper lists all the case to apply them.In the fourth part, the paper introduces the regulations about resulting trust in common-law countries and continental law country in the aim of giving some useful advice for the legislation of our country. The fifth part analyzes the case which can adopt resulting trust in our country, because we have no decided stipulation about resulting trust, we can not obtain real justice in these cases.In the sixth part, the paper also analyzes the case which can adopt resulting trust in our country, and give advice on how to conquer the abuse on obtaining fortune in jus rerem, promote the coordination with trust and jus rerem, recover the failure of our trust law witch only has express trust, protect the transferor's rights positively, to perfect the property relation in matrimony.We have to be confronted with so many barriers, such as"real right is ordered by law","there is only one ownership on one thing"in jus rerem ,and there is only express trust, trust requests written documents in trust law, and the deep-rooted idea of continental law system. In trust law, when the trust is end, the trust estate is owned by the beneficiary or his (her) successor or the trustor or his (her) successor, it ignore the possibility of the application of resulting trust.The seventh part of the paper analyzes the barriers, defines the"real right is ordered by law"properly, and analyzes legal title and equitable title in common-law system, addresses that we should change the idea that express trust is all the same with trust, and we should cancel the request of written documents when create trust.