The Study On The Establishment And Improvement Of The Testamentary Trust System In China

Testamentary trust is held by a will in which the testator indicates that after his death, his property would be transferred to the trustee, who should manage and dispose the trust property on the behalf of the beneficiary or other specific purpose provided in the will. The biggest difference between testamentary trust and the trust established in contract is that the former is established by will. The Trust Law in our country was established in 2001, testamentary trust was also involved in some rules. For the reason of the Trust Law being set, the trust business in our country grows vigorously, especially commercial trust. But the pity is that testamentary trust was rarely applied in the practice. Among the reason for the above phenomenon, one may be that China’s relevant laws and regulations of the testamentary trust system is ambiguous, the other may be the theoretical research was hysteretic.For the purpose of building and perfecting the testamentary trust system in China, this article will research and analyze the testamentary trust system from four aspects. The first part mainly introduce the testamentary trust system from the perspective of history. In this part, the first section analyzes the background and the development/spread of the testamentary trust, the second section mainly from the angle of reality, analyzing the status quo of the testamentary trust system in China, and analyzed the basis and the realistic need to build and improve the system of testamentary trust. The second part mainly elaborated the basic principle of the testamentary trust, and analysis of testamentary trust legal relationship from the aspects of component. The first section is mainly about subject qualification of testamentary trust legal relationship; the second section mainly introduced the object of the testamentary trust----the trust property, analyzing the legal nature, scope of the trust property and discussing the independence of the trust property; in the third section, the rights and obligations of the trust-or, trustee and beneficiary in testamentary trust relationship are introduced and analyzed. The third part mainly of this paper expounds the establishment, change and termination of testamentary trust from the perspective of the institutional arrangement, and discusses the legal restrictions on the freedom of testamentary trust. The fourth part mainly elaborated the perfect solution of building testamentary trust system in our country, and revealed the risks testamentary trust may encounter in practice.