The Research Of The Trust Cancellation Right

The trust cancellation right of the civil law system originated from the Anglo-American trust law, which is the transplantation and creation of tracking the equity on a beneficiary rights.The main purpose of the cancellation right is to give the beneficiary a relief right, protecting his interests of the trust. But in the process of the localization of the trust law system in China, legislators have made many of the provisions of the "creative" just like trust cancellation right, which is different from the common law on the beneficiary guarantee mechanism, and also different from other civil law countries such as Japan, South Korea, making the beneficial right of the beneficiary is hard to be protected really. This paper argues that The beneficial right of the beneficiary is a right of jus in re aliena, and the cancellation of the trust is established to protect it.In our trust law, the view that sees the beneficial right as a creditor’s right, looking the cancellation right as a protection of debt and the point that treats the cancellation as a right owned by the trustor and the beneficiary are all contrary to the nature of the trust. On this basis, this article also discusses the rule of trust cancellation right, and from the the external and internal angels of the cancellation right,suggests some legislative suggestions to perfect our trust law.In this paper, for the study of the legal system of trust revocation right is mainly divided into the following five aspects.First, the principle of the trust revocation right. This part mainly discusses the origin of the trust revocation right of continental law system, the characters of the right, and the differences between the cancellation right of trust and other cancellation rights.The author thinks that the trust’s cancellation right Originated in the beneficiary’s right to track produced by the Anglo-American equity law, and it is the transferring product of Anglo-American dual ownership.It is also different from general right of revocation of the legal act, is different from the creditor’s revocation right, and is different from the cancellation of the fraud trust.It is just a legal formation right to protect the the beneficial right.Second, the legal nature of the trust revocation right. This part mainly established the revocation right is a beneficial right, through to the trust relationship between the beneficial right of cancellation right. And by the analysis of the beneficial right’s characteristics, it established beneficial right is a right of jus in re aliena, so the trust cancellation right is a relief right of it. And restorable and returning right as prescribed in article 22 of Chinese trust law is not a legal consequence of revocation right, but an independent right of beneficiary to protect his trust interests just like revocation right.Third, the ownership of the trust revocation right. This part is mainly on the concept of protecting the beneficiary’s benefit which is a principal of the trust law, discussing the legal rationality of the right owned by trustor and beneficiary, which concludes that the rights of cancellation right is personally had by beneficiary.The author also thinks that expand the rights of the principal will harm the independence of the trust property, also may infringe on the interests of the beneficiary.Fourth, the rules of the trust’s cancellation right excising. This part mainly discusses the rules of cancellation right of the continental trust law system, including the elements of establishment, the canceling object, the ways of exercising, and the the scope of damage compensation which is got by the beneficiary after exercising his cancellation right. The author thinks that, for the judgment of cancellation right’s elements shall be from the two aspects about the subjective and the objective,and the objects include not only the trustee and the assignee, also include a malicious person.This part also discussed the scope of damage compensation that shall include direct and indirect losses.Fifth, the perfection of Chinese trust revocation right. This part mainly makes a comprehensive analysis about our trust cancellation right based on the basic theory of the trust cancellation right of the civil law system, and from the basic conception of protecting the beneficiary and his trust interests, discusses the improvement of our revocation right in the perspective of the internal and the external.Firstly,the author suggests that we should clear the subject of the trust revocation right is the beneficiary, adopt the judgment standard of malicious combining the subjective and objective factors, and expand the scope of cancellation right.Besides, out of the system, we can improve the information disclosure obligation of the trustee, establish a unified system of trust property registration, and bring the beneficial right into the Tort Liability Law in the future, to build a beneficiary interest safeguard mechanism with the legal system of trust revocation right.