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Research On The Litigation Trust

Posted on:2015-10-30Degree:MasterType:Thesis
Country:ChinaCandidate:M WangFull Text:PDF
GTID:2296330467467950Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Litigation trust is a special kind of trust which called purpose trust, specificallyrefers to the substantive rights transferred to the trustee by the principal based on thetrust of trustee, and then the trustee manages the entity right which has beentransferred to him through forming of procedure for the benefit of the beneficiaries.Litigation trust and litigation system biggest difference lies in its stability, for example,in the proceedings before the start, the principal agency relationship if the death,disappear, the trustee must wait for the heir or other authorization of the obligees tocontinue the proceedings, and litigation trust state, the client after the death of thelitigation trust the trustee may still be litigation. The difference between the litigationtrust and litigation act system in addition to the above stability, also lies in thedifference of the beneficiary, litigation act system for themselves or the original rightssubject, but the main benefit of litigation trust can also be expanded to other than theprincipal of third people, and the beneficiary of the litigation trust not as a trustee, inaddition, in special cases, litigation trust there may not be the main beneficiary, butpurely as a public service nature of the objective. Litigation trust originates from thetrust of Anglo American law system, while first pioneered by the Japanese whenintroducing common law trust system and then be prohibited; this approach has beenwidely used by South Korea, Taiwan and the China mainland. However, based on thereality of the situation evolving, trust lawsuit against this legislation prohibitingconditions have caused a lot of new discussions in various countries and regions, therehas been a series of demands to admit litigation trust effectiveness. This paper focuseson the relationship between the theory of litigation trust and civil litigation, thelegitimacy of the litigation trust in theory and the current situation of The legalenvironment in China as well as the trust industry, and based on the foregoingdiscussion, put forward that we should admit the validity of the litigation trust andchanged to prohibit the malicious litigation trust to circumvent the problems that mayarise in the litigation trust status.The article is divided into five parts.The first part introduces the basic theory of litigation trust, starting with theconnotation of litigation trust system, then compared it to litigation act system、litigation undertaking system and representation of parties in court system, to enhance the overall understanding of the litigation trust, and finally summed up thecharacteristics of litigation trust system.The second part focuses on the discussion of whether to recognize theeffectiveness of litigation trust related to the civil action theory, mainly to thelitigation trust and the parties in civil litigation qualification theory and the theory ofres judicata contact of the expansion of the subjective scope, Coming to theconclusion that the recognition of the effectiveness of litigation trust will expand thescope of eligible parties and clarifying the subjective scope of res judicata of thelitigation with acknowledging the effect of litigation trusts.The third part introduces the origin of the litigation trust ban legislation, and thenintroduces the new development of the prohibition of litigation trust about whether itshould be prohibited. On the basis of further analysis of the theoretical legitimacy, putforward that we should prohibit malicious litigation trust instead of the absoluteprohibition of litigation trust rationality.The fourth part describes the feasibility and necessity of recognizing theeffectiveness of litigation trust system, by discussing the realistic environment for therule of law, which include the introduction of the new Code of Civil Procedureabolished involved in civic agency system and the new system of increased publicinterest litigation, our trust industry current status of the relevant legislation, therealities of the current development of China’s trust industry.The fifth part proposed suggestions on the development of litigation trust systemon the basis of the foregoing discussion, including the unmodified Trust Law Sectionof the eleven should be interpreted to limit, while constantly improve the relevantlegislation and proposals relief system.
Keywords/Search Tags:litigation trust, capacity to be a party, the subjective scope of resJudicata, malicious litigation trust
PDF Full Text Request
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