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Legal Obstacles And Their Cracking In Family Trust Business

Posted on:2017-04-01Degree:MasterType:Thesis
Country:ChinaCandidate:H PanFull Text:PDF
GTID:2206330485985537Subject:Science of Law
Abstract/Summary:PDF Full Text Request
Nowadays in the trend of slow-down of development of traditional trust businesses supporting the real estate industry and government financing vehicles, and as a response to strong needs of high-net-worth individuals intending to pass on family wealth, the family trust has become immediately a new market trust institutions want to exploit. However, since the first family trust of China was established in the start of 2013, this kind of trust has long been talked about much but carried out little. The plight partly arises from people’s gradually developed acceptability of new things, but from the aspect of law, the problem lies in the Trust Law-it seems to support the family trust to be set up and to be operated, but if contemplated in a deeper facet, the Law has inherent systematic obstacles hindering the family trust from developing stably in a long run.After analyzing the definition, the nature and the characteristics of the family trust in the Chapter 1, the paper sketches the Three Elements Theory of the legal structure of the family trust-the purposes, the properties and the parties (the trustee and the beneficiary) of a trust. Considering this viewpoint excludes the behaviors and the settlor in the parties both of which are generally contained in the Four Elements Theory, the paper pays a section to discuss these two elements specifically.In the framework of the said Three Elements Theory, the paper in the Chapter 3 through 5 deals with the reasons why the articles of the Trust Law and related regulations pertinent to these elements are not in compliance with the contemplated business of the family trust, and at the meantime provides legislative proposals for solving the problems.In the Chapter 6, the paper summarizes the core legal barriers including the imperative character of the Trust Law. The original intention of enactment of this Law is to adjust the position of trust and to regulate the industry of business trust. The Trust Law was enacted in a from-bottom-to-top manner, which decides the Law pay less attention to adjust the relationship of civil trust (the upper seat concept of family trust). Furthermore, the standard of classification of trusts under the Trust Law is incorrect. So the family trust can only construct its system under the framework originally built for the business trust, and difficulties are conceivable.To sum up, we have to go back to the origin of trust. That is, to reposition the Trust Law as a tool of regulating and adjusting the legal relationship of civil trust. And as for the business trust, corresponding regulations should be made separately. The said reposition means to characterize the Trust Law as a private law rather than a public law, and then to soften its measures regarding the obligations and liabilities of trustee, and to pass on the discretion back to parties in the trust. Meanwhile, supporting arrangement should be founded to amplify the strengths of trust.
Keywords/Search Tags:trust, family trust, civil trust, trustee, discretion
PDF Full Text Request
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