Analysis On The Construction Of Constructive Trust System In China

Maitland used to say that except some independent theories, equity also created a brand new and creative system which is called"trust". In history, the creation of trust has a great historical significance. It is known as "the tool of legal revolution". It is easy to find out that trust system was designed to fix the problem of breaking trust obligation. Constructive trust has the flexibility of trust system. When the judge find there is no special rules about one case which needs to settle the trust according to the principle of fairness and justice, the judge will use the constructive trustConstructive trust used to be the earliest remedy in equity of Anglo-American legal system.The purpose of constructive trust is to correct the error and prevent fraud.As a matter of fact, constructive trust is built by the court.If the court announces that the constructive trust is sat up,the reasonless holder of the trust property can’t be the legal owner and only the constructive trust owner is able to get the profit from the trust.In other words, the illegal holder needs to return the property and benefits from the property.The construct trust is allowed to be used in a lot of areas including the relationship between marital partner, domestic partnership,commercial area which stresses on trust relationship,and related criminal law rules.For a long time, as the continental law system and Anglo American legal system are different in legal tradition, especially bound by the principle of "absolute ownership","one thing, one right",civil law countries resist the introduction of constructive trust system.In this legal context, continental law system scholars are lack of attention to constructive trust.The trust law of China is not a comprehensive introduction of constructive trust system,and most of the existing provisions are expressing trust legislation, which is a big regret.Although our current law does not provide constructive trust system,there are legal provisions of the separation of ownership and the right to benefit from China’s legal system. At this point,constructive trust ruled out the theoretical obstacles with introducing in our country.In our judicature practice,constructive trust can be found that it has been applied to estimating the trust system precedent.For example:Guang Dong Provincial Light Industrial Products Import and Export Corporation and the TMT trademark ownership dispute,constructive trust was used to resolve legal issues,which provided support for the establishment of the judicature practice of constructive trust in our country.But the constructive trust is like a shadow existing in our life, which has not been the concern of law circle,so I have a great interest in the study of constructive trust.To sum up,we should get rid of the continental law system"elements oriented"thinking in trust law,and use a development and inclusive vision to reexamine the concept of the trust,and use the trust law"amendment"to seek legal space for constructive trust.Definitely,to inherit the legal tradition of continental law rooted in China and actually play a role,constructive trust must go through a transformation process of localization.The huge diiference,economic, political,social and cultural fields must result in a series of conflicts and maladjustment,rules from construction to mature is not a short duration of time.To keep the premise inherent legal tradition and continental law system integrity and utilize the unique function of constructive trust for perfecting the relief mechanism do favor to our civil relief mechanism, it needs further research and argumentation theory.It is hoped that the related research will deepen,and gain more achievements.Based on the "trust law"perspective,by doing careful analysis and research thoroughly on constructive trust system,the author thinks, China’s current "trust law"has not put any chapter on constructive trust,trust also has some legal loopholes or blank, affecting the overall development of Chinese trust industry,which is not conductive to the full realization of trust function.In fact,constructive trust is a type of trust,some with relevant provisions and system designs in "trust law"can be used in constructive trust. Therefore,the author discussing and expounding the civil judicatory value of constructive trust based on the trust theory,and analyzing the necessity and feasibility in borrowing constructive trust system to China-Theoretically, there is no conflict between the double and"one thing,one right" system of ownership,and similar rules in constructive trust can be found in our country.To analyze the construction of the constructive trust system in our country,the author puts forward the basic ideas of modifying trust law and relevant judicial interpretations in this paper.