A Research On Trust Of The Right To Return On Assets

Trust, as the product of the common law, was introduced to China at early time which can be traced back to 1979, however due to different legal culture, the development of trust in china is exceptionally winding, industry of trust had experienced liquidation and regulation five times during 1980 to 1999. After The basic framework of china’s trust law, which include a law and two regulations, was finished in 2007, the whole trust industry begun to get development right. As the successor of the financial system, trust companies treated themselves as a bridge between the capital market and the industrial field, effectively fixed many flaws of the stock market, credit loan market, and gained rapid development at the same time. Due to the flexibility of the trust structure, Trust product innovations emerge in an endless stream, trust of the right to return is a kind of popular product in recent years. However, since the date of born of trust of the right to return, there have been many questions about it. The final judgement of shanghai higher people’s court, at the beginning of 2014 made those questions more significant. Actually, many problems in trust of the right to return need to be discusses and researched, such as The appropriateness of the trust property, The rationality of dual contract, The validity of pledge etc. How to solve those problems is the original intention of this thesis.This thesis is divided into four chapters, the first chapter mainly lists four cases of trust of the right to return in practice, problems in which include the legal nature of the right of return on assets, uncertainty of right of return on assets, Registration of trust of the right to return on assets, and the conflict of interests of the trustee. A brief summary is made at the end.The second chapter is the overview of trust of the right to return on assets, which is divided into two sections. The first section is the definition of the concept of trust of the right to return on assets. First of all, the author explored the origin and development of trust of the right to return on assets, understand trust of the right to return on assets in a historical perspective thorough tracing to its source. After that, the author defines the concept of trust of the right to return on assets, and compares the difference between "profit" and "right to return", which make the meaning of trust of the right to return on assets clearer. After that, the author compares the differences between trust of the right to return on assets and similar vehicle including collective fund trust and asset securitization, for the purpose that we can make the extension of trust of the right to return on assets clearer. The second section is the feature and function of trust of the right to return on assets, and discuss five feature of trust of the right to return on assets: the establishment of trust is irrevocable, the trust property depends on basic assets, benefit from right to return is in future benefit, the beneficial right of the trust is structured, trust settlor has the obligation to repurchase the trust property, then deduce three functions of trust of the right to return on assets: enriching enterprise the financing paths, increasing the liquidity of assets, decentralizing operational risks.The third chapter is the legal problems of trust of the right to return on assets. This chapter follows discussion of overall framework of trust of the right to return on assets.in the second chapter, and combine with the cases in the first chapter, to carefully analysis the legal problems. The first section is the legal nature of the right to return, according to the data, narrates theory of creditor’s right, theory of powers and functions, theory of usufruct, combines with the author’s view to find unreasonable points of those theory. The second section is to explore the new property right. The author discusses theory system that treat right to return as new property right, and compares with the beneficial right of the trust to describe the uniqueness of the right to return on assets. The second section is the feasibility of the trust property. The author discuss the appropriateness of right of return on assets as the trust property in three perspective including transferable right, certain of right, positive property, and further affirms the legitimacy of trust of the right to return on assets. The third section is registration problems of trust of the right to return on assets, and the author describes the specific operation of the registration process in current trust practice, and analyzes the reasons to further carefully analyzes risk in dual contract and defective pledge registration. The fourth section is the interests conflict of the trustee, the author shows the transaction structure of trust of right to return with picture, and describes the functions and features of the parties, especially the complex role of the trust company, and then analyzes all kinds of legal relationship exists, interprets the conflict of interests and reasons that make such results.The fourth chapter is improvement of trust of right to return on assets. The first section is the right of return on assets under the mode of the real right. The author analyzes misunderstanding of scholars that they treat right to return as creditor’s right, and explain advantage of the right to return, if we treat it as real right. Those advantages include eliminating the controversy in uncertain trust property, making the trust be valid since the signing of the contract, etc. The author discusses which mode we can choose for legislation of trust of right to return on asset, and explains why not choose amend the property law of PRC, and also explains the advantage of separate legislation. The second section is improvement of registration of trust of right to return on assets. At first, the author interprets the necessity of improvement of the property registration for trust of the right to return on assets, including the effective establishment of the trusts, the independence of trust property. At the same time, for registration operation, the author proposes a way to unified registration of right to return, and denies real right model, and further explain the reason for unified registration in the trust registration authority.