Theory Of The Value Of The Testamentary Trust And The Important System Guarantee

Compared with the traditional way of property inheritance, testamentary trust has a unique system of superiority, which is the cause of civil law countries generally introduce the system. But because of the system stems from the common law and based on the discrete of the common law and equitable law, which led to the transplant of the institution in civil law countries is not expected smoothly. With the increase in the practice of testamentary trusts in civil law countries, people’s understanding of the system constantly deepened, from the initial conceptual transplant has been converted to mainstream functional transplant. This is indeed a major progress in law, meanwhile, it bring convenience to the people’s practice.This paper argues that functional transplant is certainly an important progress of cognition in civil law countries.However, the testamentary trust should not just be treated as a legal tool, but it also needs to be seen as a legal pursuit.In the process of functional transplantation of the testamentary trust, we must fully understand the values behind the testamentary trust function, so the system can further avoid the alienation caused by purely functional transplant.Due to space limitations and the overall compact, this paper circumvent the describes of the characteristics, Concepts, necessity, feasibility and other basic theory of the testamentary trust, opening a direct sort of historical overview of testamentary trusts. And from its most original trajectory,we can find that the system is based on common law and equitable binary separate legal system and based on activities to raise freedom and efficiency. Based on this, we abstract three intrinsic value of the testamentary trust, namely freedom, efficiency and order. Trust law and inheritance laws involved are private areas of law, private law emphasizes the protection of people’s rights and maximize the value of freedom.So, the freedom is the purpose value of the testamentary trust. Meanwhile, value in line with people’s seeking ways to minimize costs in succession, efficiency value is the inherent pursuit of trust law. In addition, the order value not only provide strong protection of the realization for freedom and efficiency value, but also scope of the delineation of the boundaries of the freedom value and efficiency value.Based on three-dimensional Value framework, we then build associated peripheral system to protect the balance between these three values. Of course, many systems are not fully developed, this is only due to this article attempts to discuss the external system to construct a rough outline of the overall structure of testamentary trust, and then from the discovery of the structure of the whole system we can find the lack where testamentary trust not conform to freedom, efficiency and the order value. Of course, the work needs to be done in the further, more detailed study.