Research On Legal Problemsof Transfer Of Beneficial Right Of The Trust

The transfer of the beneficial right of the trust has its legal basis.As a special property right,there are the value of trust beneficiary right,as the same as creditor's rights,real right,intellectual property and company's equity and so on.The law should give the right holder the right to freely trade such property rights.But the legal nature of the right may differ rules of the transfer of the rights and as we all know,rules of transfer of creditor's rights,real right,intellectual property are independent of each other.There is no set of identical or shared rules.Therefore,the legal nature of the trust beneficiary right which is derived from the Anglo-American law system and the nature of the rights under the traditional civil law system are quite different.And rules of transfer must also be based on its own characteristics and the requirements of the trust system to make.It is necessary to construct a perfect legal system for the transfer of trust beneficiary right.When civil law countries introduce the trust system which is derived from common law system,they will face a problem of localization of trust law,and China is no exception.When China legislate the trust law,to a large extent,it refer the Japan and Taiwan's trust law.However,since the promulgation of Trust Law in 2001,there is still no improvement to the present situation.And there also is a contradiction with the development of trust practice and the judicial dispute of trust.Specific to the legal system of the transfer of trust beneficiary right,Trust Law only refers to the provisions of Article 47 and 48.It prescribes in principle that trust beneficiary right can be transferred,inherited and used to pay off debts.But it does not mention specific conditions of operation and the transfer of trust beneficiary right,the balance of rights and obligations of the parties in the process of transfer,the legal effect of the transfer and the way to relief the rights and interests.Related problems have been gradually appeared in the judicial practice,and there is no strictly uniform basis for the referee when courts made judgments in the face of disputes in relevant cases.Because of the lack of special referee basis of "Trust Law",the judges tend to use the contract law and other traditional civil law thinking to make judgments.Although the surface seems fair and just,this may make the judge's referee against the original intention of the parties to establish the trust because trust is different from contract.In addition,such phenomena may make our trust legal system a weak position,the judicial practice did not regard it as a unique civil and commercial legal system,but only as a subsidiary of civil law,the significance of the introduction of the trust system in China will be greatly discounted.In addition,the current overall size of China's trust industry has more than 18 trillion yuan,and the capital of the collective funds is more than 6 trillion yuan.This shows that the existing trust benefits or the trust products have a large-scale transfer of demand,and the orderly and normative transfer of benefits is of great importance to investors,financiers and the trust industry.Speaking of the legal nature of trust beneficiary right.Previously most researchers have been concerned about it.There are also many relevant comments and disputes about it.To sum up,theories mainly include credit theory,property rights,real right claims,special rights and residual claim theory.The creditor 's right that the trust benefit is a kind of creditor' s right,the rule of transfer should apply to the creditor 's rights rules,trust legislation in Taiwan region and the Japan adopt this kind of pattern.The theory of property rights regard trust beneficiary right as real right,and it also includes the right of trust property tracking and distribution rights and it can be defined as a new type of right in rem.Theory of Forderungsrechte and Sachenrechte proposals that beneficiary can request the trustee to pay the trust interest and supervise the trustee to manage the trust property,on the other hand,when the trustee improperly handles the trust property,the beneficiary also considers the beneficiary to take the right of the creditor's rights and the real right.Many scholars hold such views in Taiwan,China.Theory of special rights thinks that the trust system begins from Anglo-American legal system,trust beneficiary right derived from which is not in the civil rights system.Accessing to the right to benefit as a traditional civil law mandatory is too blunt,and with the development of modern economic life,richer content of the type of right will be reproduced.so such new rights should also be recognized by law.Trust beneficiary right is such a right,which is similar to intellectual property rights.The theory of residual claim holds that,from the economic theory,the right of a property can be divided into fixed claim and residual claim,and the residual claim can only be obtained if the creditor's rights and interests belonging to the fixed claim are fully satisfied,which is similar to equity of company.The nature of the right to trust beneficiary right has no clear conclusion,but the process of debate also makes the academic community get a deeper understanding of connotation of the beneficial right.In general,there is no dispute that the nature of the trust beneficiary right both have feature of creditor's rights and the real right.Therefore,this paper argues that the rules of transfer of trust beneficiary right should mirror and refer to both rules of transfer of creditor's rights and the real right.Trust beneficiary right exists in a relatively abstract form,and it can not be characterized by legal action of real right.For it is similar to the claim,and trust beneficiary right is transferred when the parties have completed the transfer agreement.Publicity of right to change is extremely important for the protection of transaction security.China is currently accelerating the registration system for trust products.With the reliance on the right to trust the registration of the right to benefit,transfer rules of right to benefit need to be combined with registration of trust benefits.It is necessary to distinguish between the right to benefit of registration and the right to benefit from the absence of registration.In respect of the beneficial rights that have been registered,the right to change the right to take effect.The transfer of the right of benefit without registration is effective in reaching agreement.There is still a legal or agreed restriction on the transfer of the beneficial right.There are four main aspects: for the purpose of the trust,due to the special provisions of the trust documents,according to own nature of trust beneficiary right and restrictions on laws and regulations.But these restrictions are not absolute,and there are exceptions to the circumstances.Our trust legislation or the judiciary should give these exceptions to the case of affirmation.The legal effect of the transfer of the beneficial right is to regulate the rights and obligations of the assignor and the assignee and the principal in the course of the change of the legal relationship,and clarify the legal effect of each party.The existing judicial cases on the transfer of trust benefits reflect some typical but fragmented judicial dispute of trust beneficiary right.These disputes include the way to weigh the heir's right of inheritance in the case of transferring trust beneficiary right,the way to protect goodwill transferees when transferring trust beneficiary right,whether the right to benefit can be divided,the way to protect the parties when the right to benefit is transferred multiply and how to claim the guarantor to repurchase the right to benefit when the trust is terminated.It is undoubtedly helpful to construct and perfect the rules of transfer of trust beneficiary right.