| The rule of trust is a rule governing the property management for the people and organizations. It originated from "the rule of land use" in the 13th century in England. According to this rule, the owner of the land transfer the ownership of the land to another one, but the earnings of the land belongs to a third party. A valid trust must include the intention to trust, the definite property and the existence of the beneficiary party. Nowadays, the function of the trust is not only to escape from the various legal restrictions to the property transfer. It has more flexible ways to accomplish the function in the property transfer and management, when comparing with the other ways of property management, such as the form of agent and corporation. And it can also satisfy the various needs of the people to manage their property better than the other ways.The law of trust is the most brilliant contribution that British make to the legal history in the world. All the other countries take the British trust law as their model. And the trust law in the Anglo-American legal system exists in the form of case law. The trust law in British has been completely perfect with a history of more than 600 years, and the trust law in America is just a copy of the former one. In the Continental legal system, only Japan, South Korea and Taiwan district had set up the law of trust before we made it in the year of 2001.In April 28, 2001,China promulgated its own trust law and put it in force in Oct.1, the same year. The new trust law had successfully replanted some special rules from the Anglo-America trust law when replanting the common-shared rules from the two legal systems. And some of these special rules including as follows: 1,accepting the announcing trust as a legal way of entrust; 2,forbidding to set up illegal trust; 3,requesting the important items of a trust to be fixed; 4,stipulating it to share the benefit equally if it is in short of the allocation portion in a trust. All of the above special rules had been proved reasonable and useful in our country. But the other countries of the Continental legal system did not accept these special rules, in this sense, the trust law in China is superior to theirs.But as the legal principle of property right of the Continental legal system is a little different from that of Anglo-America, and the two legal systems have a little difficulties in mixing with each other, and the rule of trust lacks the theoretical basis in our China, so it has many flaws in it after it has been replanted to China. These flaws includes the following: 1, it is improper to exclude the regulation of trust industry from the trust law. If we don't put the regulation of trust industry in the law of trust, it will have bad opinion to the trust industry from the society.2, it is incorrect to stipulate the promise of the trustee as the prerequisite of a valid testamentary trust. Because it will affect the validity of the testamentary trust if the trustee reject to be.3, the public announcement of setting up a trust is not stipulated completely. It provides register as the only way to publish the existence of a trust and does not stipulate what should be registered, who can have the right to register and how to register. So it is hard to be operated in the practice.4, the rule of "stipulating that any trust actions are non-profitable" does not live up with the reality. Because in a marketing economy oriented society, trust is specially designed for commercial purpose, so trust is surely a profitable action.5,it gives indefinite answer to the problem that if the co-trustees can't reach the same decision to the trust action.6, it is too narrow that the trust supervising protection is only used for the trust of public good. But the trust of private good isonly protected by itself. So I think it needs an overall supervising rule in order to protect the beneficiary side?7, it is not enough to stipulate the supervisor of the public good affairs as a sole admini... |
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