Rethinking Of China's Trust Legislation

Focusing on the translation and the operation of the Trust Law in our country, this article reviews the legislation of trust from the angle of the function substitution and the angle of the legal principles conflict by the methods of the compare, history , theory analysis and sociology. Then the author forecasts the obstacle of the Trust Law's working in our country and gives a prospect of the Trust Law's development.The article is divided into four parts: The first part is about trust system' historical evolution and basic principles, and the second part is about the substitution and the lack of the continent countries' law instrument to the trust, the third part concentrates the overcoming or the obstacles and the relaxing of the conflicts and the fourth part is about the re-thinking over the China' legislation of trust and the prospect of the China' Trust law in the future.In the first part of the article, the author has reviewed the historical evolution of trust, and introduced the basic principle of the trust in order to establish the foundation for the whole article. We can realize the trust system better In the retrospection of trust system' historical evolution, and also can excavate traditional and inherent trust resource and thus inspire our transplant work of trust from the trust- similar instruments' germination and extinction which has been existed in the continent law system(among the Rome law mainly). It is defined that the trust' function is the maximum and longest using of others'ability which is based on the isolation of the trust property in the introduction of the trust basic principles.In Trust Law' transplant, two key factors which should be considered are unique function and cost of transplant of trust, which are discussed in second and third part separately. In the second part which plays an important role in the article, through the comparison in the civil field, commercial field, the charity realm and the justice kingdom between the trust' function and the traditional law instruments in the Continental Law Legal system, it is revealed that in Continental Law Legal system the trust' functions have been substituted partly. First, they are mostly substituted in the civil field ; Second, trust have enormous advantages in the field of commercial affairs, which provides the main reason for the Trust law' transplant; Third, thereis not a new function that trust can offer in the charity field compared with the instrument of corporate body; Fourth, it is unnecessary and impossible to transplant the Trust Law because its sound function as remedy for the "non-conscience" transfer of the property is completely taken place by the Unjust Enrichment and the other reason is the two legal system's profound spirit conflict (the order of the right and the remedy , the discretionary power of the judge, etc.).In the third part, after analysis of the profound contradiction between the " absolute ownership " in the the Continental Law Legal system and the " double-deck ownership " of the trust,the author claims the " absolute ownership " is so stiff that should be changed in some degree because its inefficiency in disposition of resources and its function to guarantee the people's freedom also can be reach under the " double-deck ownership ". Thus the conclusion is drawn that it is not a conflict that can't be overcome. The differences between two legal system in mechanism and tradition of the Judicature, the conflict of the public policies, the faith and trust in china's society and other obstacles in Trust Law' transplant to china are also analyzed In this part.Proving through the analysis of 2 - 3 parts, the author has drawn two conclusions at first in the fourth part. First, a great part of the trust function has already been substituted by the inherent instruments of the Continent Law Legal system and this kind of substitution of function can be expanded through the transformation of the inherent instruments; Second, the obstacles of transplant is not what can not be overcome. Then the author give a prospect of the role of the Trust Law in the coming future in china: Trust Law will apply to the commercial affairs field mainly; and its function may expand to the civil field latterly; In the charity field trust will coexist with the the instrument of corporate body; But will never enter the judicial field as a remedy for the "non-conscience" transfer of the property .The places of article's innovation are as follows: First, more extensive and deeper comparison are carried out between trust and related instruments in the Continent Law Legal system, one example is the comparison between trust and the "series inheriting" which is carried out for the first time in china, another example is the deep comparison in function between trust and the "association of the contract for third person's interests and other instruments ". Second, without the burden to find theory supports to the china's legislate forTrust Law, the author stands on the comparatively just and sound angle to probe into the different attitudes to Trust Law by Continental-law countries, and weighs the advantages and disadvantages in Trust Law's transplant, thus draws the comparatively apropos conclusion. Third, on the ground of sufficient comparison in function the conclusion is drawn that the trust's functions have been replaced in a lot of field, and because of the substitution of the function and conflict of the legal principle, "this trust" transplanted by china is not equal to the original trust because its function has already been seriously restricted. In another words, trust can only function in certain fields in china besides it has an extensive application in the original country.