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A Research On Pledge Of Beneficial Right Of Trust In China

Posted on:2017-05-27Degree:MasterType:Thesis
Country:ChinaCandidate:L L MingFull Text:PDF
GTID:2336330488972657Subject:Civil and Commercial Law
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The nature of the trust beneficiary right as a pledge guarantee has not yet been clearly stipulated in Chinese laws and regulations. Besides, there have not yet been specific rules about the trust beneficiary right as a pledge guarantee. Relevant institutions to promote the role of the trust beneficiary right to control risks are lacking. However, over the past one decade or so, the powerful function of the trust beneficiary right as a pledge guarantee to promote the fluidity of trust products and its high-profit financing and investment function have been increasingly recognized by China's trust industry and financial guarantee industry. Against the backdrop of “exploring the circulation of the trust beneficiary right” confirmed by the No. 107 Document of the State Council, numerous efforts have been made to explore the trust beneficiary right as a pledge guarantee. This paper first comprehensively expounds on the nature of the trust beneficiary right as a pledge guarantee. Based on the prerequisite, this paper proceeds from characteristics of the trust beneficiary right and the practical business demands to put forward comprehensive suggestions for institutional construction as to how to select the path the proper path to realize the nature of the trust beneficiary right as a pledge guarantee. The author hopes to contribute slightly to the building of a trust beneficiary right pledge guarantee system in the future, eliminating suspicion of the trust beneficiary right as a pledge guarantee to be regarded as a collective market violation, responding to market demands and boosting all-around market development. Generally speaking, this paper consists of five parts:In Chapter 1, relevant theoretical issues related to the trust beneficiary right as a pledge guarantee are expounded. First, the law connotation of trust, trust property, trust beneficiary right and trust beneficiary right as a pledge guarantee is defined. The content and nature of the trust beneficiary right mentioned in this part is critical to the discussion about the possibility of the trust beneficiary right as a pledge guarantee and how to design a specific guarantee system in the following chapter. The trust beneficiary right includes the property right and the non-property right. Based on its attribute as a purpose-oriented right, the trust beneficiary right should belong to the special creditor's right. Second, the institutional functions of the trust beneficiary right as a pledge guarantee are analyzed both macroscopically and microscopically. In this chapter, the author takes the P2 T investment mode as an example to illustrate the unique investment function of the trust beneficiary right as a pledge guarantee.In Chapter 2, the institutional environment and business situations of the trust beneficiary right as a pledge guarantee in China are introduced. In the first part of this chapter, it points out the status of almost none institutional systems recognizing the trust beneficiary right as a pledge guarantee in China. Based on a full study of the trust beneficiary right pledge guarantee model, the author spearheads in categorizing the trust beneficiary right pledge guarantee model. In the case study part, characteristics and analogical relationship are summarized at an attempt to fully but not complexly demonstrate the overall perspective of market innovation of China's trust beneficiary right pledge guarantee. As the saying goes, “There is no smoke without fire.” The market spontaneous path selection provides the most targeted directional guidance for the institutional building of the trust beneficiary right as a pledge guarantee.In Chapter 3, risks and dilemmas facing the trust beneficiary right as a pledge guarantee under China's current institutional environment are expounded and analyzed. First, going against the principle of legality of right in rem and the principle of property right publication, the existing trust beneficiary right as a pledge guarantee is faced with the risk of invalid pledge. Second, there lacks the cooperation of the trustee to “freeze” the trust beneficiary right as a pledge guarantee. The preservation of the pledge totally relies on the moral restraints. Thus, the situation is extremely risky. Third, the floatability of the weight of the trust beneficiary right decides limitedness of the full play of its guarantee functions. Coupled with the lack of the risk disclosure system for trust products and the risk management system for the trust beneficiary right as a pledge guarantee, it is hard to encourage capital owners to actively accept the trust beneficiary right as a pledge guarantee.In Chapter 4, the feasibility of the trust beneficiary right as a pledge guarantee is proved. Theoretically speaking, the constitutive requirements for a right to a pledge guarantee should include the attribute of the property right, transferability and feasibility to be a pledge. The author analyzes these constitutive requirements one by one, finding that the trust beneficiary right meets all the above requirements. Thus, there are none obstacles to pledge it theoretically. In the current Property Law of the People's Republic of China, the nature of the contract-type securities investment fund asset beneficiary right, stock right and creditor's right as a pledge guarantee is recognized. This is a forceful legal basis for the possibility of the trust beneficiary right as a pledge guarantee.In Chapter 5, the path to build the trust beneficiary right pledge guarantee institutional system in China is explored. It is the focus of this paper. The author suggests that the path design can be conducted from three aspects. First, top-level design: Section 7 of Article 223 of the Property Law should be amended so as to put aside the principle of legality of right in rem and endow the trust beneficiary right with the possibility to be pledged. Second, building of the subject system: The trust beneficiary right pledge guarantee system and the trust beneficiary right registration system should be built; the right relationship building of the trust beneficiary right should show its characteristics; special institutional treatment of the setting, preservation and realization of the right of pledge with the trust beneficiary right as the target should be conducted. Third, the establishment of the supporting system, including the trust product information disclosure system, the credit rating system and the trust beneficiary right pledge risk management system. The floating weight of the trust beneficiary right decides the existence of the above systems to ensure the popularity of the rust beneficiary right as a pledge guarantee.
Keywords/Search Tags:trust beneficiary right, trust beneficiary right as a pledge guarantee, market innovation, pledge risk, trust beneficiary right pledge guarantee institutional system
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