Research On The Enforcement Of Trust Property And The Beneficial Right

The trust property and the beneficial right, as a property rights in civil law, should protect the foreign debt of holders. However, in order to make sure the stability of the trust system and legitimate rights of creditors, the legislation stipulate that the trust property can not be enforced compulsively in principle, but the beneficial right of the trust can be used to setting debts of the beneficiary. So whether this stipulation can make the balance between the obligatory right protection and the trust protection or not in principle? And whether the operation is explicit in practice? This paper investigates the current situation of the trust property and the enforcement of beneficial right from the perspective of the main executive body, and makes classifying analysis about the situation through the methods of analysis, induction and compare. Then some specific arrangements about the trust property and the enforcement procedure of the beneficial right will be made.This paper is divided into four parts except the introduction:The first part presents the questions. In the executive process of performing the property of the executed, the court performs some duties, such as identifying the subject mater of execution, choosing appropriate manners of execution, applying relative executive programs and so on. However, because of the principle of the stipulations, and the undefined quality of the beneficial right of the trust influences the choices of appropriate executive procedures. This goes against the protection of the trust system and affects the execution procedure.The second part concentrates on the current situation of the trust property and the enforcement of beneficial rights. The independence of the trust property makes that it is independent of the property of clients, trustees and beneficiaries and the restriction of the enforcement, so it can not be executed compulsively. But the exceptional circumstances stipulated in the Trust Law make the executive court confused in identifying the trust property. The trust beneficial rights, as an independent civil rights, have the property value and negotiability and should provide a guarantee for the beneficiary's debts as a property rights. But Trust Law leaves special types of trust beneficial rights out of consideration, and lack specific qualities of trust beneficial rights and relative creditors' rights system. So these affect the court's enforcement to the trust beneficial rights.The third part makes classifying analysis of the trust property and the beneficial right of the application execution subjects.Firstly,the creditor of the client has rights for the trust property before setting up the trust, and can apply for the enforcement in principle.Secondly, the debt resulting of handling trust affairs,including the trustee can not repay the debt, the interests of the trust property be increased,there are otherwise provisions in the trust documents and other conditions in line with the principle of good faith,the creditor of trustee may apply to enforcement;Thirdly, trustee set their own's rights and the necessary expenses for the handling of trust affairs,the trust property can be enforced. At last, even though the beneficial rights can not be transferred, the creditor can also apply for the enforcement of the beneficial rights. And the trust beneficial rights generally can not be executed compulsively in the safe trust, alimentary trust and discretionary trust.The fourth part is the specific designs of the trust property and the enforcement procedure of the beneficial rights. The enforcement of the trust property mainly involves identifying the trust property, confirming the choices of the enforcement and relative execution procedures, sealing up, freezing and appraising the trust property at the current rate. The enforcement to the trust beneficial rights can be implemented in the following situations in principle: no other property can be done; there is no safe trust, alimentary trust and discretionary trust. The procedures for the enforcement of the trust beneficial rights consist of querying, sealing up, evaluating and appraising the trust beneficial rights. And if the executive court has inappropriate executions to the trust property and the trust beneficial rights, people concerned the trust property has the rights to raise any objections.