Research On The Self-declaration Of Trust And It’s Systematic Construction In China

The self-declaration of trust, in which the settler declares to hold his own property as trustee, is a very important type of trusts in Anglo-American legal system. Although this special kind of trusts is characterized by the sameness of settler and trustee,there still exists the segregation between the nominal ownership and the beneficiary interest(i.e. the so called dual ownership)which is widely considered as the core feature of trust, therefore, it has gain its validity for centuries in Anglo-American legal system. There is no equity in Roman Law system,the dual ownership is considered to be contradictory with the intrinsic conception of single and exclusive ownership of civil law system. When trust was introduced by civil law countries or regions,the single ownership of trust assets was generally vested in the trustee,meanwhile,in order to make the trust under civil law system achieve the same legal effect as under Anglo-American legal system, the independence of trust assets was forcibly constructed by legislation,instead of based on rational and stable theory. The ambiguity of the nature of trust makes it difficult to identify the boundary of trust,the self-declaration of trust is lack of the transfer of property,so the concern about the infringement of interest of settler’s creditors result from its abuse is always exaggerated,which contributes to the repellence toward this special kind of trusts by civil law countries or regions,China is also included.By adoption of such research methods as historical analysis,comparative analysis and normative analysis,this article points out that the core feature of trust is the independence of trust assets,the foundation of which is the segregation between special patrimony(i.e. the trust assets)and general patrimony. It is feasible as well as necessary for China to introduce the self-declaration of trust,the trust law in future should construct the system of the self-declaration of trust. This article consists of three parts——introduction,main body,conclusion,and the part of main body is divided into three chapters as follows:Chapter one takes an overview on the self-declaration of trust respectively from the perspective of history and comparative law. The first part puts much emphasis on the sentence reason and social background of two vital cases regarding the self-declaration of trust,pointing out that the close connection between trust and transfer of property is transient,it is the dual ownership considered as the core feature of trust that makes the self-declaration of trust gain its validity in Anglo-American legal system. The second part centers on the inheritance of the self-declaration of trust in Anglo-American legal system( taking America as example) and its transplant in Roman Law system(taking Scotland,Japan and Taiwan District).Chapter two expounds the theoretical basis of the self-declaration of trust based on the independence of trust assets. The independence of trust assets cannot be completely explained by the theory of dual ownership under Anglo-American legal system,there’s no equity in Roman Law system, so theory of dual patrimonies should be referred to as the theoretical basis of the self-declaration of trust,instead of the theory of the dual ownership.Chapter three discusses the systematic construction of the self-declaration of trust in China. The first part analyzes meticulously the feasibility and necessity for China to introduce the self-declaration of trust,while the second part puts forward the detailed measure to construct the system of the self-declaration of trust which goes that Chinese legislation about trust law in future should set up some basic rules regarding the self-declaration of trust as well as some other rules aiming at protecting the interest of both the beneficiaries and the creditors of settlers from infringement.