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Preliminary Research On China Trust Registration System

Posted on:2013-04-27Degree:MasterType:Thesis
Country:ChinaCandidate:W B LiFull Text:PDF
GTID:2246330371479407Subject:Law
Abstract/Summary:PDF Full Text Request
Trust system is a property management system which began from England,developed in the United States, and being generally inherited by civil-law systemcountries, especially in East Asian.The reason why trust registration received so much attention is that the provisionof article10in Trust Law is too general. The paper starts from the introduction of thetrust registration and introduces the basic situation. Firstly, it analyzes the causes oftrust registration. The author’s study shows that: the absence of the rules of equityresulting in the interests of beneficiaries can not be guaranteed; the imperfect propertyregistration system can not distinguish trust property from the inherent property of thetrustee, and lead to the occurrence of the trustee contrary to trust purpose; the legalconcept of “one thing one right” from civil law countries lets the principal can getlegal confirmation when they assure the property to a trustee entrusted. Secondly, itstudies the concept of a trust registration and makes analysis and comparison betweentrust product registration, trust documents registration and trust property registration.The author believes that the trust registration is actually an entire process of trustproduct’s obtainment, change and management which shows the state of the trustproduct. Finally, it analyzes the significance of trust registration. The author’sanalysis improves that trust registration has guaranteed the independence of the trustproperty, confirmed the relationship among parties, and also put an end to some of theillegal purposes of the trust, especially been able to promote the development of trustindustry.Any legal system has its theoretical support. The reason for the registration of atrust also has its theoretical support. The first theory is based on the public summonsof the alteration of the real right. By the impact of the “one thing one right” legaltraditions, all the civil law countries has already established a system of publicsummons of real right. Real property right needs to be registered for public summons.The benefit right of trust is a real property right in nature, consequently, it should be carried out according to the requirements of the public summons of the alteration ofthe real right. So this is the original theoretical foundation of trust registration. Themost straightforward theory of the trust registration is the independence principle ofthe trust property. The independence principle of the trust property is firstly reflectedin the independence of the trust property from the principal property. And then, itreflected in the independence of trust property from the trustee inherent property inorder to prevent the trustee from misappropriating, hiding trust property, or breachingthe purpose of the independence principle of trust property. Under the current legalsystem, only trust registration system can solve the issue of the independence of thetrust property. That is the most important reason why the trust registration is so urgent.Of course, the independence of the trust property is also reflected in its independencefrom the property of the beneficiary. Trust behavior is a typical compound act, whichcontains causal behavior and act of disposition. A trust behavior as a whole consistsof two acts. The behavior that the principal transfer the property to the trustee is theact of disposition in the nature. After the commencement of a trust behavior, thetrustee will bear the obligation to management of the property, which actually set bythe principal as the trustee debt; standing on the principal’s point of view, thisbehavior is considered to be credit behavior.The key task of this paper is to construct a trust registration system which can beconsistent with China’s national conditions. The author studies it from five aspects.The author’s study concludes that not all property can be used to set a trust andbypasses the traditional thinking perspective on the legitimacy of property toconsiderate it from the following four aspects: whether the property can be measuredin monetary; whether it is positive property; can it be transferred by law; and is thereany limitations of the special law. Not all the trust properties that are used to set trustneed to register. On the scope of the trust property registration, the author thinks thatthe scope should be connect to China’s existing property registration system, such asland, buildings, forest rights, ships, aircraft and intellectual property, which need toregistered has to apply for registration while other properties can take the principle ofregistration antagonism according to the wishes of the parties. On the effectiveness ofthe trust registration, the author has compared the principle of registration effectiveness with the principle of registration antagonism. Requirements of theformer are too strict to conduct to the development of China’s trust industry, so theauthor chooses the principle of registration antagonism, which means the trustproperty may not be against a third party without registration. Any legal act requires acertain subject, as well as trust registration. The author improves that the obligation oftrust registration should set according to different circumstances. On the issue of thetrust registration authority, the author adopts a strategy for the gradual establishmentof the appropriate registration authority. It should firstly solve the problems currentlyimpeding the development of trust industry that is to establish a unified national trustregistration center, which is mainly providing services for trust company. Meanwhile,the author also recommends using property rights trading center as the agent of thisbusiness. Secondly, it is to solve the problem of property registration when theprincipal transfers their properties to the trustee. The author thinks that it can useexisting property registration system to deal with respectively, and finally make acomplete trust registration.
Keywords/Search Tags:Trust Registration, Registration Public Summons, Property Registration, Property Public Summons
PDF Full Text Request
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