On The Legal Application Of Foreign Trust

The so-called trust refers to the trust between the trustor,the trustee and the beneficiary.The trustee entrusts the trust property to the trustee on the basis of trust.The trustee manages and disposes of the trust property,and the beneficiary enjoys the benefit right of the trust property.To investigate the origin of trust system,scholars generally believe that trust system originated from the British usufruct system.In medieval England,church beliefs were widespread.Many believers donated their land and other property to the church after their death,which was in conflict with the monarchy at that time.The law prohibited believers from donating property to the church in order to evade the law believers from transferring property to a third person.A third person manages the land and donates the proceeds to the church.Later,Britain established trust system through the"Equity Law".With the convenience of its establishment,trust continuously accumulated social wealth and flourished in Anglo-American law system countries.Under the impact of global economic integration,in order to cope with the growing economic exchanges,civil law countries have established their own trust legal system through transplantation or recognition.Because of the differences in legal tradition,politics,economy and culture,there are many differences in trust systems between common law countries and civil law countries.Later,with the development of trust,trust between different countries is often foreign-related.However,there is no uniform rule to determine the applicable law in the conflict of laws of trust relationship with foreign countries,which brings great uncertainty to the application of foreign-related law and is not conducive to the protection of the rights of parties.It was not until the Hague Conference on Private International Law in 1984 adopted the Convention on the Application and Recognition of Trust Law(hereinafter referred to as the Hague Trust Convention),that some universal rules were provided for resolving conflicts of laws concerning foreign-related trust among countries.However,so far,few countries have ratified the Conventioa Many Chinese scholars believe that the provisions of the Convention do not conform to the basic national conditions of our country,so our country is not a member of the Convention.For a long time,China has no provisions on the legal application of foreign-related trust relations.It was only in 2010 that the Law of the People's Republic of China on the Legal Application of Foreign-related Civil Relations was passed,which for the first time made clear provisions on the legal application of foreign-related trust in China.After judicial practice in recent years,it has been proved that although the principle of autonomy of will has been introduced into the legal application of foreign-related trust relations in our country,there are still some imperfections in its provisions.In view of this,this paper takes "On the legal application of foreign-related trust"as the topic,based on the basic theoretical explanation of the legal application of foreign-related trust and the law of foreign-related trust.The investigation of the applicable legislation and practice expounds the legislative basis,basic characteristics and main defects of the provisions on the application of foreign trust law in China,and makes a useful discussion on improving the legislation and practice of the application of foreign trust law in China.In addition to the introduction,the full text mainly includes the following parts:The first part elaborates the basic theory of trust and the main manifestations of the conflict of laws concerning foreign trust.Firstly,it explains the concept and characteristics of trust.The difference in the definition of trust between the two legal systems is mainly due to the difference in legal tradition between common law countries and civil law countries.Secondly,it expounds the meaning and characteristics of foreign-related trust,which is mainly embodied in the foreign-related nature of trust,that is,as long as one or more elements of trust have foreign-related nature,it will be constructed.Finally,the main manifestations of the conflict of trust concerning foreign affairs are elaborated,which are mainly embodied in the conflict of the nature(identification)of trust,the conflict of the validity of trust,the conflict of rights and obligations of the parties in trust,the conflict of trust management law and the conflict of the ownership of trust property.The second part examines the basic principles of the application of foreign trust law in the international community.This paper summarizes the basic princples of the application of foreign trust law by sorting out the rules of the two legal systems on the application of foreign trust law and the basic provisions of the Hague Trust Convention on this issue.Although the two legal systems have different legislation and Practice on the applicatibn of foreign trust law,they usually follow the following basic rules:the principle of the law where things are;the principle of autonomy of will;the principle of the closest link and the principle of self-trust law.The third part discusses the legislative basis,basic characteristics and major shortcomings of the provisions on the application of foreign-related trust law in China.The legislative basis of the provisions on the application of foreign-related trust law in China is based not only on the legislation and practice of the international community on the application of foreign-related trust law,but also on the judicial practice of the application of foreign-related trust law in our country in the past.The relevant provisions of our country embody the following basic characteristics:first,foreign-related trust applies the principle of autonomy of will first;second,the application of foreign-related trust is most closely related.Third,there are great differences with the relevant provisions of the Hague Trust Convention.There are at least the following shortcomings in the relevant provisions of our country:firstly,only for foreign-related contract trust,there is a lack of provisions for the application of foreign-related testamentary trust law;secondly,the scope of application of trust to the principle of autonomy of will is vague;thirdly,the scope of application of the principle of the closest link is too narrow.The fourth part puts forward the basic idea of perfecting the application of foreign trust law in China.Firstly,we should improve the trust system of our country,clearly stipulate the property right ownership and validity requirements of trust,and provide the system basis for the formulation of applicable rules of law of foreign-related trust in our country;secondly,we should improve the qualitative(identification)system of foreign-related trust in our country,and introduce it.