Study On Legal Nature And Application Of Trust Property Rights Without Equit Law

The trust originated in medieval England, has been widely applicated in countries of common law system. In particular, since the twentieth century, the trust system was paid on more and more attentions along with the rapid development of economic globalization and the growing of public's wealth. This system had been transplanted by many civil law countries (eg:Japan, South Korea) successively. Under Anglo-American legal systems, the performance of the management of trust property separate from the earnings of trust property is that the trustees and beneficiaries share the "dual ownership" in common law and equity, but it is the "dual ownership" structure, making the civil law countries which adherence to the principal of "One thing, One Right" facing huge theoretical obstacles in the course of transplanting the trust system. The article focus on the system designing of trust management and earnings separation, and adopting historical, comparative, theoretical analysis and other methods, and try the introduction of "quasi-property right" concept, to avoid the conflict between the absolute ownership theory of civil law and the "dual ownership" theory of common law, in order to introduce the trust system under the theoretical framework of the traditional civil law and to resolve difficulties in practice.The article is divided into four parts:the first part is the history of evolution and basic principles of the trust, the second part is the trust property which is separate from the equity, the third part is the nature of the trust property:a new right--quasi-property, the fourth part is the outlook of the application prospect of trust property in our country.The first part of the article traces the origin and history of the Trust and introduced the basic principles of trust. By restoring the objective form of the trust, we can not help considering:whether the system designing of the management and benefits phase separation can live without the "dual ownership"? Therefore, the key for whether the trust which leaving the equity can be transplanted to the civil law countries successfully lies in how to ensure the trust property be managed or disposed by the trustee for the benefit of the beneficiaries, thereby ensure the nature of separation of the trust management and benefits.The second and the third parts are the focus of the article. For the civil law countries, there are different trust doctrines generated in different countries in the process of transplant, for the trust system as a kind of exotic. Through the introduction and assessment of the relevant doctrinal, comparative analysis of trust system and relevant system design of traditional civil law, the second part of the article have an in-depth analysis to the barriers of traditional civil law transplant trust system:the arrangements of "dual ownership" for trust property in trust system, can not be interpreted or replaced by ownership theory of civil law system. Thus, in the process of the transplantation and application of trust system, the problem to be solved urgently is not how to determine the vesting of property, but lie in how civil law system to seek one kind or several kinds of institutional arrangements to achieve the same effect as"the separation of management attributes and interests attributes" caused by "dual ownership", so as to ensure the value of the trust system to play.The third part based on the discussion of the second part, hold that facing the phenomenon of ownership failure, we may introduce the tectonic concept of property rights of the trust, through the universality and flexibility of the trust system, make the legal principle of real rights be mitigated, and the original system more open, more inclusive, and then raised that the trust property right is a new right:quasi-property. According to the "near but not reach, as the same class" point of view of some scholars, the rights enjoyed by the trustees which not including the earning right, in the content, quite approach to the ownership of the property law sense, the beneficial interest of the beneficiaries have a strong Right, property rights (for example, the Trust's request to enforce the right, track rights, etc.), both of which can be called "quasi-ownership". The most basic difference between "quasi-ownership" and (full) ownership is that the performing of trustees' rights are be restricted by the beneficial interest of beneficiaries, and trustees can not enjoy the earnings of trust property; beneficiaries to enjoy the benefits while they can not own, control the trust property, which is the requirement of trust property independence. In this section, the article focused on the quasi-property rights nature of the trust property rights, and raised that given property rights to trustees and beneficiaries separately by trust law, recognizing it as "quasi-property rights people", and confine it by other supporting systems (such as the independence of the trust property, the right of rescission of the beneficiaries, etc.), so as to solve the problems of application of the trust system under the traditional civil law system.Based on the former discussion, the fourth part have a reflection to the relevant provisions of trust property rights under our current trust system legislation and defines the trust and the trust property, and point out that after we defined trust property rights as "quasi-property", the trust system will not only not be suffocated by principle of legality of right and "One thing, One Right", but is expected to exercise a moderating influence on the drawback of absolute right of ownership and dichotomy system of property rights and creditor's rights; meanwhile, the application of trust property rights in the practice field which have a unique right structure is prospected.The innovations of this article is that it pointed out in the process of introducing the trust system under the premise of protecting dichotomy system of property rights and creditor's rights from damage, we should not,even have no use for, look into where is the absolute "ownership" excessively, and have no use for explain the "dual ownership" of common law system by traditional civil law theory; but through the introduction of "quasi-property" rights, the regulation of rights and obligations of the parties in the trust system, to avoid the theoretical conflict of civil law system absolute ownership theory and common law system "dual ownership", in order to introduce the trust system under the frame of traditional civil law theory, and to solve many difficulties such as management of state-owned property, society collection, land trust and bankruptcy trustee etc., by trust system.