On The Qualification Of Trust Property

This postgraduate thesis focus on the qualification of trust property,study and analyze the case Anxin Trust &Investment Co.,Ltd(Anxin Trust)v.Kunshan Chungao Investment Development,Ltd(Kunshan Chungao)in the aspect of qualified trust asset,using related theory to solve practical issues.Regarding certainty ? transferability ?property right as the standard of qualified trust asset.According to these criteria,we get the conclusion that the definable? identifiable? predictable future creditor's right is the qualified trust property.It is clear that its essence belongs to a future claim through the definition of the right of assets' benefit,a trust based on the right of assets ' benefit can be established.After an in-depth analysis of the facts of the case,found that the trust property in the case should be the underlying asset itself,i.e.land use rights and construction in progress,instead of a trust of assets' benefit right.Since the trust property was not actually controlled by the trustee and did not have trust registration,so the trust is invalid,the legal relationship between Anxin Trust and Kunshan Chungao is “so-called benefit right trust,in fact,the trust loans ”.This paper is divided into four parts,the specific content as follows:The first chapter,introduction the facts of Anxin Trust v.Kunshan Chungao and proposition the controversial focus of this case.Through the review of the case,the qualification of the right of assets' benefit as the trust property,the trust property in this case and the case of qualitative are the most controversial focus of this case,and also the main problems this article need to study and solve.Chapter two,the standard of qualified trust property.Regarding certainty? transferability? property right as the standard of qualified trust asset.Through the introduction of Anglo-American Trust Law,Continental Trust Law,combined with china's trust law theory and practice,interpret the exact meaning of these three standards : the certainty of property should have two meanings,property identifiable and property independence,as for property independence,this article hold the opinion that the ownership or actual control of the property should be transferred from the principal to the trustee;the transferability of property means that the transfer of property should be de facto and legally viable;Property rights means that the property's value can be measured in monetary terms and have positive values.Apply these three criteria to determine whether the future creditor's rights could be trust property,the definable? identifiable? predictable future creditor's right meet the requirements of trust property certainty,although the transfer of future claim only be effective when the claim become real,the meaning of the transferability of future claim means the contract based on future claim can be established and effective,whereby the future claims can be used as trust property in the event of compliance with the foregoing criteria.The third chapter,from the perspective of trust property to analyze the trading model of the case.First of all,analyze and prove whether the right of assets' benefit is qualified trust property,The right of assets' benefit is defined as the income from the management,use or disposal of the underlying assets,and the deduction of the original and its various forms of the original parts,“deduction of the original and it's various forms of the original parts ” are different with the definitions used in the business community,so the concept of the right of assets' benefit can be more standardized and rigorous.At the same time,introduce four perspective on the legal nature of the right of assets' benefit and point out my own view :it should be defined as a future claim.The connotation and denotation of the right of an assets' benefit is clearly defined by the parties and the current technical conditions can be identified and predicted,it shall be deemed that the right of asset‘s benefit satisfies the certainty requirement;At the same time,the asset proceeds as a future claim meet the requirements of transferability and property rights,so the right of assets' benefit is qualified trust property.Then analysis and demonstration the main focus of the case,through the definition of the right of assets' benefit,found out that the agreement of “the right of assets' benefit ”in their trust contract didn't meet the exact definition of the right of assets' benefit.If according to the parties trust contract,they was supposed to establish the general asset trust,the trust property is the state-owned land use right and the construction in progress itself,since the trust property was not actually controlled by the trustee and did not have trust registration,the trust relationship between Anxin Trust and Kunshan Chungao is invalid.Finally we conclude that the legal relationship between Anxin Trust and Kunshan Chungao is “so-called benefit right trust,in fact,the trust loans ”.The transaction mode in this case can be reduced to : the Anxin Trust and investors set up collective trust relationship,and the trust property is the money investors invested,Anxin Trust manage the money as trustee and issue a trust loan to Kunshan Chungao,Kunshan Chungao use the land use right and construction projects as the guarantee.The fourth chapter,the perfection of trust property standards and supporting system.It shall confirm the qualification of the right of assets' benefit as the trust property,however,in the event of the establishment of a trust in the right to an asset,the ownership of the trust property shall be transferred in order to comply with the requirements of the "real sale" of the asset securitization;the understanding and identification of these three standards should be developed as the change of the society,on the premise that compliance the law and regulations and controllable risk,to support trust innovation.The publicity system of the trust property should be improved to ensure the certainty and independence of the trust property can be realized,safeguard the legitimate rights and interests of the third party,protect the security of the transaction.