Research On The Eligibility Of Founding Trust With The Right Of Return On Assets

In pace with the steadily development of the financial market in our country,the asset backed securitization(ABS)trading model,being flexible in choosing the underlying assets and having strong function in collecting money,dominated by the securities company has already become an increasing favored financing method by investors.Meanwhile,the trust business as a traditional financial industry resorting on the nature advantage of “the bankruptcy remote” and the industry's insistence on “the rigid repayment” have also stroke the sight of investors gradually.As to the trust products,the new-coming trust product in precedent market,the right of return on assets being a kind of trust property,has thrown down a new challenge to the adaption of existing laws.To be specific,on the one hand,the existing law system of our country,especially the relevant concept and content of the right of return on assets is not specific under the existing system of rights.On the other hand,the attitude of trust law-maker's in our country is open on the range of trust property,in other word,the standard is relatively vague to affirm the trust property,thus it has set a strong uncertainty as to the legality of trust product of the right of return of assets.Because of the particularity of law-making in financial industry,namely,the innovation of financial products always force appropriate adjustments of relatively laws.In this case,after the confirmation of the legal characteristics of the right of return on assets,it has a great realistic meaning to discuss the issue of its edibility of founding trust.This thesis can be divide into four parts below:The first chapter mainly introduces the right of return on assets and the relative trust product.In this chapter,the introduction of relative concept and product come first,revealing the concept and the content of the right of return on assets as well as the common understanding by interested parties in transaction files to the right.After that,it follows the deconstruction and the analysis of the right.Specifically,the analysis of running steps in the transaction model of the assembled funds trust schemes and the property rights trust considering the right of return on assets as trust property,and put the spotlight on the latter transaction model.In addition,this chapter also includes the distinguish feature as the particularity of trust property,the importance of autonomy of will in trust,and the participation of the asset service agency and so forth,helping to wholly grasp the trust of the right of return on assets.The second chapter includes the introduction and the analysis of the legal attributes of the right of return on assets.Firstly,by being searched in the existing law system,the conclusion has been made that the relative concept is a blank space in law.Secondly,by using the method of typologically analysis according to the standard of the difference of underlying assets,the concept of the right of return on assets can be divided into two parts as the right of return on material assets and the right of return of immaterial assets,furthermore,the former can be classified into the frame of the jus rerum and the latter can be categorized as the benefiting function of property rights.Last but not the least,by analyzing the property rights system and explicating the reasonable position of the right of return on assets,drawing the conclusion that the right is belonging to the property right system eventually.The third chapter focus on the research on the eligibility of founding trust with the right of return on assets.The specific analysis of whether the right is qualified to be trust property will be going by continuing the foregoing that analyzing the legal attributes of the right of return on assets and from the angle of the relative regulations of the eligibility of being trust property in both our country and Anglo-American trust law.To be specific,by means of analyzing the certainty and the independence element of trust property,to clarify the requirements of “bankruptcy remote” and “true sale” in trust law.With combining the match of the right's legal attributes,to draw the conclusion that the right of return on assets is eligible to be the trust property by trust law.The forth chapter introduces the practical risks and the discussion of preventing methods.After explicating the legal attributes of the right of return on assets,to reveal the risk in practical running of the trust product of the right of return on assets,mainly from the perspective of publicity methods,the instability of cash flow,the uncertainly method of bring about the benefit,and trustee's violation of the fiduciary duties as well as the unbalance of rights and obligations,wishing the sound development of the trust of the right of return on assets will have a sound future by analyzing the risk preventing methods step by step.In summary,the main conclusion of this thesis can be presented as below: the narrower definition of the right of return on assets can just contain the right to gain the new profit.Due to the development of marketing economy,the importance of collecting benefits from assets is increasing gradually,therefore it is necessary to consider the right of return on assets as an independent property right in order to boost the exchange of the right.Besides,the right of return on assets has the certainty of the trust property,in this case,it is eligible to be a trust property.