International Trust And The Conflict Of Law Study

Trust, as a system of property management, stems from the UK, and gets popularity in the United States. The common law gives the trust system full improvement, and some other countries of the civil law give it continuous application. The unique system of trust enjoys a flexible practice in many fields, such as: property management, capital financing, fund financing, and social utility. With the economic development, the accumulation of private property and more and more frequent business contacts globally, international trust comes up unceasingly. When adopting the trust system, each country has made reorganization in line with its state condition and law culture, in order to reach the balance with the inherent laws ideas. Although the basic points of the trust systems in different countries are almost the same, there are big differences in practice, in addition, most countries currently have no such systems, therefore, the conflict of law concerning the international trust becomes more and more complicated and confusing. The thesis has a comprehensive and thorough discussion about the conflict of law concerning the international trust, which hopefully serves as a trigger for further research about this issue. The paper has almost 30,000 words, and is divided into the following four parts:Part I: Trust System. This part focuses on the definition of trust, legal characters of trust and legal nature of trust. Although various understandings of the trust system in terms of law, the scholars from different countries have agreed on the four legal characters. They are: the separation of the ownership and interest of the trust property, the independence of the trust property, the continuity of the limited liability and the property management. The characters of the trust have direct influence on the legal application of international trust. The double-property theory in the common law reveals the essence of trust, while the civil law is trying to merge the trust system into the inherentproperty concept, preserving the soul of the trust law. As far as I am concerned, trust is a totally new and independent form of rights for the civil law, and cannot be simply put into the ownership or creditor's rights of the civil law.Part II: The occurrence and main character of the conflicts in international trust law. The objective existence of the international trust relationship, the discrepancy of the trust legislation in various countries and the external force of the trust legislation, the collective effect of all of the above factors creates the conflicts of the international trust law. The conflicts appear in many forms, such as the classification of the trust, the ownership of the trust property, the composing elements of the trust, the capability of the parties, the position of the settlor, the rights and obligations of the trustee and beneficiary etc.Part III: The solving of the conflicts of law of international trust. The applicable law of international trust comes through a long evolvement from the simply applying of lex in rem to the popularity of the trust proper law. According to the trust proper law, the trust is governed by the law chosen by the settlor. Failing choice of law by the settlor, or failing finding out the choice of law, the law of the place with which it has the closest connection shall apply. Now, most scholars believe that the different sectors of the trust system should be regulated by different legislations."On the Applicable Law and Admission of the Trust", promulgated by Hague International Conflict Law Conference, is one of the primary fruit in unification of the conflict law of trust by international society. It covers every aspects of the applicable law of trust including the definition of the trust, the selecting method of the applicable law, the connecting points for reference, the adoption of decepage, the changing of the applicable law and the admission of the trust etc., except those preliminary questions such as the trust establishment and the enforcement of the contract.The case...