The Research On The Commercial Subjectification Of Collective Money Trust

After being introduced into our country, trust mainly exists in the form of business trust typically represented by collective money trust. In such short ten years' development, the assets managed by the trust industry has breached 16 trillion. However, while developing in the high speed, the weakness of the trust industry has appeared. One the one hand, due to the very differences in the idea of property right, there is a huge obstacle to the successful transplanting of trust law, which is an old rule in the common law system. In fact, there still remains many theoretical problems of trust law to solve. One the other hand, in recent years, the rigid payment frequently occurred always pushes the pratical problems of the collective money trust to the forefront of the public voice. Nowadays, the rise of business trust has aroused the re-discussion on legal nature of trust law during the academics. Following the “property theory” and “contract theory ”, “organization theory” has been used by many trust law scholars as the most powerful theory in explaining the business trust. Through comparison study, the writer find that to analyze the collective money trust which take a big part in the trust business and frequently expose all kinds of problems in the view of organic law may not only be great useful to solve the conflict during the basis theoretical problems of trust, but can also be conducive to dredge the realistic difficulties of the collective money trust.This dissertation consists of five parts.Part I mainly discusses the basic theory and development status of the collective money trust in our country. At first,the writer analyzes the concept and the characteristic of the collective money trust, and put much more emphasize on the four stages' intension of it. Then on the basis of combing the development status of the collective money trust, the writer concludes that the development of the collective money trust is always lack of a reasonable set of endogenous mechanism.Part II mainly discusses the legal nature of the collective money trust. As regard to the legal nature of trust, presently there are three opinions including property theory, contract theory and organization theory. The relations between the parties of the collective money trust are based on the contract in our country, but it is not sufficient when faced with practical problems. By contrast, starting from the organizational quality of the collective money trust, and treating it as an independent commercial subject will be much more significant to the pratice.Part III discusses the practical significance of the commercial subjectifification of the collective money trust. On the basis of analyzing the significance as for the ownership of the trust property and the reset of the trustee' obligation and responsibility of the commercial subjectifification of the collective money trust, the writer concludes that it can well solve such pratical problems.Part IV mainly discusses the possibility of the commercial subjectifification of the collective money trust. The writer analyzes it from such three aspects: the rentability and commercial nature of the collective money trust, the independence of the trust property, the name and internal governance mechanism of it. And then concludes that the collective money trust has the possibility to be a commercial subject because it has the basic constitutive requirements of commercial subject.Part V mainly discusses the system building of the commercial subjectifification of the collective money trust. At first, this part studies the implementation path of the commercial subjectifification of the collective money trust from the incorporated foundation and legal body of enterprise, then concludes that the collective money trust should be defined as a special business entity paralleling with corporation. Secondly, this part resets the trust parties' rights and obligations by centralizing on the balance of trustee' power and the allocation of beneficiary' rights so as to provide the beneficiaries who is also act as investors with enough safeguard.