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Critique And Reconstruction Of Trust Bhavavior

Posted on:2011-02-25Degree:MasterType:Thesis
Country:ChinaCandidate:J L TanFull Text:PDF
GTID:2166360305979553Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Trust originated and prospered in the Anglo-American law, and was concerned about and favored by the whole world. Trust Law of Mainland China, was enacted in 2001, but its application in the civil area was extremely rare. A fundamental reason, that is, this series of questions, whether trust behavior belongs to juristic act, and what kind of juristic act it is, its nature, and its legal structure, has not yet been reasonably explained.It is generally believed that trust was derived from "usufruct" in medieval England. The definition of trust, is purpose-oriented model in Anglo-American law, while in civil law, it focuses on sorting out the legal relationships. And in the Anglo-American law, there is no a concept of "trust behavior" that is the Subordinate concept of juristic act, and its Chinese etymology was from the Japanese. Since the concept of trust behavior is not clearly defined, there arises a question:during the process of legal transplant, is the contract sufficient to play the essencial role of creating the trust?It was considered as a gentlemen's agreement and could not be enforced when trust was first appeared-it is probably because the Anglo-American contract law stresses on the consideration and privity of contract, while trust follows the Equity system, so most scholars tend to hold the idea that trust is non-contractual. However, there are still many scholars agree that "trust is a contract" in both Anglo-American and continent of Europe. This paper argues that from the perspective of the trust theory, the nature of the difference between trust and contract, trust can be established by contract. Through the comparison with the entrust, agency, custody, and company, the core features of trust can be:A. the title of trust property should be transferred; B. independence and identity of the trust property. With regard to the theoretical basis for trust behavior, there are multiple theories and almost each has its defects, this paper tends to agree with the theory of obligation and it can be illustrated from the aspects of the history of trust, the nature of the beneficial interest, and the process of establishing a trust.On the structure and nature of the trust, there are three main theories, but they are questionable. Through the analysis, this paper denies the value of real act, and comes to the conclusion:In Japan, trust is established when the contract entered was completed; while in Taiwan, the transfer of trust property is added.According to the relevant provisions of Trust Law, "entrust" actually contains the meaning of "delivery", and trust behavior does not absolutely lead to the establishment, which it shall be varied by the trust property.Finally, this paper proposes the relevant suggestions of Trust Law, and draws conclusion.
Keywords/Search Tags:trust, trust behavior, real act
PDF Full Text Request
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