Research On Spendthrift Trust System

The spendthrift trust is a kind of trust created for protecting the benefit of the spendthrift.The beneficial right of the trust enjoyed by the spendthrift cannot be pursued by its creditors and used to pay off debts.The spendthrift trust system originated in Britain and has been widely applied and developed in America.After the promulgation of the trust law in 2001,because of the "restrictive provisions on trust documents" in articles 47 and 48,it is generally believed that China has established a spendthrift trust system.Doing research on the spendthrift trust system is helpful to restrain the extravagance and perfect the trust law.At the legislative level,there are not many laws related to disposing the beneficial right of trust,with article 47 and article 48 of the trust law as the center.At present,there is only one normative legal document limiting the disposal of beneficial right of trust in China,and the corresponding restrictive provisions in laws and administrative regulations are still blank.At the judicial level,87 civil judgments can be obtained by.searching on the Chinese judicial document website.The analysis shows that alienating beneficial right of trust is more likely to be involved in two types of cases,namely business trust dispute and contract dispute,especially loan contract dispute.In the dispute of equity transfer,it is more likely to involve the content of limiting the alienation of beneficial right of trust.It can be seen from the current situation of legislation and judicature that there are some problems in our trust law,such as unclear legislation thought and incomplete standard construction.The legal basis behind the spendthrift trust,namely its value orientation,has three aspects:respecting the autonomy of will,balancing the interests of all parties and ensuring basic living standards.Based on the technical analysis of the laws and regulations in China,America and Japan,we can know the normative structure of the spendthrift trust.In the three countries,the spendthrift trust clauses all restrict the alienation,China and the United States limit the repayment of debts,and the United States and Japan limit the pledge.However,China lacks the restrictions on the pledge and enforcement,which should be included.In terms of the legal effect of applying this law locally,the legal effect of the spendthrift trust in America has clear legal provisions,but not in China,while Japan adopts antagonism.The legal effect of conflict law depends on the country's legislative policy.The invalidity of the spendthrift trust is mainly stipulated in the American law.The self-settled spendthrift trust is invalid.And the spendthrift trust which its beneficiary and the sole trustee are the same person is invalid.There is no such stipulation in China and Japan.In American law,non-profit organizations and other entities can also be the beneficiaries of the spendthrift trust,while in China and Japan it depends on the agreement in the trust documents.In order to perfect the spendthrift trust system in our country,we should modify article 47 and 48 of the trust law,explicitly state the terms of the spendthrift trust,set up exception creditors,limit the scope of protection of the spendthrift trust and prohibit the self-settled spendthrift trust.