Trust Law

Trust play a vital roles in British society and in countries governed by theBritish in earlier eras, for example USA, Canada, Australia, New Zealand andIndia. But in British, there is no statutory definition of the trust which can be usedas a major premise from which rules relating to the trust can be deduced. So inBritish the term 'trust' refers to the legal relation created-inter vivos [in life time] oron death-by a person, the settlor, when assets have been placed under the controlof a trustee for the benefit of a beneficiary or for a specified purpose. In theiropinion, a trust is not a legal person, like an individual or a company, capable ofowning property. For there to be a trust, property must be subject to a trust, so theproperty will be owned by a trustee or trustees or by a nominee on behalf of thetrustee. Trustees hold property as joint tenants, so on a trustee's death the propertypasses automatically by the right of survivorship to the surviving trustees: if the lastsurviving trustee does not appoint more trustees, then on his death the property willbe held by his personal representative who should appoint new trustees.In the twentieth century, even European and other countries which do nothave the British concept of the trust in their domestic law are becoming preparedto recognise many aspects of foreign trusts as a matter of private international lawwhen matters involving such trusts arise in their jurisdictions. In the civil law,which is derived from Roman law, ownership is an abstract concept in absoluteterms: it is axiomatic that ownership of property requires the owner to have allownership rights, namely rights of disposition, management and enjoyment. Twoor more persons can not be owners of the an asset except as co-owners when eachco-owner is the absolute owner of his undivided fraction of the whole.In my opinion, without breaking the absolute ownership principle orextending the list of "real" rights, full transposition of trust by analogues isimpossible. The systems of law in civil law states were satisfactory without theneed for an additional equity jurisdiction so no concept of equitable ownershiparose, nor was there any feudal doctrine of estates since there had been a thoughreception of Roman law with its concept of absolute ownership. The problem is that who should be the absolute owner in the trust. The trustees, the beneficiaries,or one of them, the setter, the personified trust itself?. There are diferent answers forthis question. Someone has held that the trustee is the owner of the trust property,but with powers limited by the trust instrument and roles of equity, and that thebeneficiaries have no ownership rights though their interests are "guaranteed" byequity. But I think the only way is to affirm that: the trusts have legal personality,the assets belongs to the personified trust itself. It constitute a separate fund and arenot a part of the trustee's, the beneficiary's and the setter's own estate. The personcreditors of trustee, beneficiary and setter shall have no recourse against the trustassets; and the trust assets shall not form part of the trustee's, the beneficiary's andthe settees estate upon his insolvency or bankruptcy; and the trust assets shall notform part of the matrimonial property of the trustee's, the beneficiary's and thesetter's estate upon his death.So the trust may be regard as a fondation or stiftung which consists of thededication of a fund to a specified object with an appropriate organisation for itsadministration so that it has legal personality.