Prepared By Trust Study

As a legal institution of very important machinery in reaching civil remedies in the common law jurisdiction, a constructive trust is always used by Equity to correct the unconscionable behavior of the property owner, furthermore, it also remains one of the hottest subjects studied and discussed by common law scholars. However, if we turn around and take a look at our legal system, we will find everything is just in the opposite side: no reference is made to constructive trusts by the RPC Trust Law and little attention is paid to the subject in Chinese academic treatises. Such a sharp contrast inspired my interest on constructive trusts. This thesis tries to combine constructive trusts with the Chinese civil remedy system, on the basis of an illustration of the whole legal system of constructive trusts which includes the concept, the formation and the equitable theories for their operation, to make some suggestive discussion about whether should constructive trusts be transplanted into Chinese civil remedy system to some extent or not.This thesis is divided into four Chapters.Chapter 1 is a general introduction of constructive trust. Under the influence of resulting oriented thinking, common law jurisdiction usually concentrates on the legal consequences, not the formations, when civil legal acts need to be defined. So is the definition of constructive trusts and therefore this chapter compares constructive trusts with expressive trusts on several aspects including the constitution basis, the trust property, the trustee and the beneficiary in order to get a better understanding of the formation of constructive trusts. Besides, a detailed analysis of the distinction between constructive trusts and other similar institutions, such as resulting trust and secret trust, is put forward in the last section of this chapter. Chapter 2 is devoted to study the theoretical basis that can justify Equity in imposing a trust on a property owner. In fact, constructive trusts arise as a reaction to a number of sets of circumstances which are supported by different equitable theories. Some constructive trusts are imposed because the fiduciaries breach their duties, while some are imposed for the fulfillment of an assurance that has been relied on, and the others are imposed to strip the wrongdoer of unjust enrichment. The fundamental basis by reference to which the law imposes constructive trust shall be concluded in the last section of this chapter. It must be said, however, any effort trying to cover all those theories is probably impossible since there is nothing to prevent a court identifying for the law a new set of circumstances to require the imposition of a constructive trust, so the discussion in this chapter is not exhaustive.Chapter 3 makes a comparative study of the institution patterns of constructive trusts. There are two different patterns of constructive trusts in common law jurisdiction: the English constructive trust is said to be institutional, while the American constructive trust is recognized as remedial. The criterion of classification is based on divergent opinions about the nature of constructive trusts. After a comprehensive study on the scope of institutional constructive trusts and remedial constructive trusts, a summery of the differences as well as the similarities and connection between the two patterns is introduced in the last section of this chapter.Chapter 4 focuses on the transplant of constructive trusts to China, and comprises four main parts. The first section makes an introduction of the concept and general theories of civil remedies in both common law jurisdiction and civil law jurisdiction, which can help us to assess approaches adopted by Chinese civil law to establish civil remedy regulations in the second section. The third section uses both positive and negative ways to elaborate the significance that constructive trusts have to our remedy institution in civil law system with a combination of the legal issue analysis. The last section of this chapter will survey the common issues confronted by Chinese civil law system in the reception of constructive trusts. One more thing needs to be clarified here is the study of this part is not an overview, but to some extent a research on the outstanding issue.The Conclusion portion of this thesis re-emphasize the main contents of constructive trusts and the writer's opinion in short, besides that, there is also a further discussion on the meaning and the writing purpose of this thesis.The constructive trust is a specialized institution in common law jurisdiction. Nevertheless, it is unavoidable to dig into the general theory of remedies in civil law jurisdiction along with the legislation and judicial practice in China, since the constructive trust is treated as a new thought to improve the civil remedy institution in China in this thesis. As a result, the main materials are constituted by theories, literatures, cases and histories that come from not only Chinese legal system but also other foreign legal systems.The Methodology of this paper is listed as below: (1) Case study Method; (2) Comparative Method; (3) Historical Method.