The Confrontation Effectiveness Of The Beneficiary Right Of Trust Against The Third Party

The nature of the beneficiary right has been in the debates of real right or obligatory right.But Anglo-American scholars are more inclined to trust from the contract or the form of property rights to discuss the nature of the trust.Whether the analysis of the nature of the beneficiary right is correct directly affects the effect of the beneficiary right on the third party outside of the trust.And this is related to the implement of the beneficiary's trust interests which is also the trust purpose.On the other hand,the rules of the effectiveness of the beneficiary right on the right of the third party in the actual provisions can directly reflect the legislator's knowledge on the nature of the beneficiary right.In other words,the nature of the beneficiary right and its effectiveness against the third party are closely related.Based on the trace to source of beneficiary right and the analysis of the theory and the judicial practice,this article tries to draw a correct understanding of the nature of the beneficiary right,and then make a reasonable proposal on the legislation of trust law.The first chapter gives an overview of the controversy over the nature of beneficiary right.As to the nature of the beneficiary right,neither the claims of real right or the claims of obligatory right is reasonable.The lack of clarity in the understanding of the beneficiary right lead to the inconsistence of provisions about effect of the beneficiary right on the third party in the "Trust Law".The second chapter then explores the theoretical support of the effectiveness of the beneficial right against the third party,which is always the same through the development of trust.Such a function shows that the trust will have an impact on the rights andobligations of the third party,which shows that trust is more closer to the form of property rights instead of a contractual arrangement.On the other hand,the trust breaks through the legal restrictions on the form of rights and has the flexibility of the contract.In the third chapter,through the investigation of the effect of the beneficial right of different types of trusts in practice,it is found that the stipulations of the Anglo-American Trust Law are different from those of China's "Trust Law".Chapter 4 attempts to explore the correct logic of determining the nature of the beneficial right and beneficial effects of the beneficial rights,on the basis of which proposes amendments in respect of the relevant provisions to the "Trust Law".First of all,the establishment of a trust must be conditional on the transfer of ownership of the trust property.Secondly,the beneficiaries should be discussed in respect of the elements of interest.The nature of the beneficial right is not a simple non-real right.It should be a diversified combination of rights and interests.Therefore,Article 47 should affirm the effectiveness of the beneficial effects and give due consideration to public policy.The last chapter summarizes the core view of the article.It should be clear that the transfer of trust property should be a prerequisite for the establishment of the trust and the elements of the beneficial rights are supposed to change according with the change of type oftrust.