Study On Legal Effect Of Trust Of The Right To Return On Assets

Although the trust product is a high-risk investment,in fact investors can always get the expected return.It is not due to that the trust can ensure the benefits,but the effect of rigid payment.Even if the investment is lost,the trust companies will ensure that investors get benefits.But the trust companies is not likely to bear all losses,at the beginning of the product design,the trust company will ask financiers to provide a large number of security measures,eventually the risks and losses will transfer to financiers.In April 2018,PBOC,CBRC,CSRC and SAFE jointly issued Guidance on Regulating the Asset Management Business of Financial Institutions,one of whose keynote is to break the rigid payment,so the future trend is to make sure the "caveat emptor" principle.When investors of trust products really suffered losses in the future,whether there is trust relationship between financiers and investors will directly affect the scope of the investors can recover.The trust based on the independence of the trust property,the beneficiary of investors can only get benefits from the trust property,and may not recover the loss from the trustor.If the financier is not trustor,there is only the general creditor's debt relationship between the financier and the investor,the investor or the trustee can recover the loss from all the assets of the financier.Therefore,it has great significance to make sure if the trust of the right to return on assets has trust effect for the potential investment dispute after the break of rigid payment.To discuss such problem,the paper can be divided into four parts.The first chapter is an overview of the trust of the right to return on assets.This chapter firstly introduces the origin of the trust of the right to return on assets.As the right to return on assets is not the legal right,the supervision policy lacks the2 corresponding name,the trust of the right to return on assets can avoid many restrictions and procedures.In addition,In addition,this chapter expresses the existing problems of the trust of the right to return on assets.The first one is that there are two operating modes which are named the trust of the right to return on assets in practice,which should be discussed by classification.Secondly,the certainty of the trust of the right to return on assets should not only be taken as the basis of the validity of the trust of the right to return on assets.The third one is that although credit promotion measures will be set under the trust of the right to return to prevent risks,but credit the legal relationship of promotion measures is different from the trust relationship,the credit promotion measures can't make up the validity of trust.The second chapter discusses the trust system under the theory of the act of law.The first part is the nature of the establishment of the trust,the trust behavior to establish trust is combined by an act of debt and an act of disposition whose object is the property to establish trust.The second part is the requirement of the trust property,it should meet the requirement of the object of the act of debt and the act of disposition to be lawful,possible and certain.The third part is the nature of the trust property,the establishment of the trust will make the trust property to be independent and substituted,which is the characteristic of the trust and other property system of civil law,which realized the bankruptcy isolation,thus the purpose of the trust can be achieved to the greatest extent.The third chapter is the transferring of the right to return on assets under the theory of the act of law.The first part is the content of the right to return on assets,According to the contract provisions about the transfer of the right to return on assets in practice,the right to return on assets can be summarized as: Firstly,the transferee has the right to obtain benefits from disposing or keeping underlying property;Secondly,the right to return is separated from the ownership;Thirdly,the right to return is separated from the right of management.The following part is the differentiate and analysis with the legal concepts.Although there is the right to return on assets or similar expression in the individual field of law,they are not the right to return on assets in practice and should not be confused.Finally is to make sure the nature of the right to return on assets,it should also be considered to generalized future rights which include the future creditor's right for main.Assignment of future creditor's right is an effective act of debt and an act of disposition subject to condition,the condition is that the future creditor's right comes into actual creditor's right.The fourth chapter is the nature of the trust of the right to return on assets.The first part discusses using the trust property to trade the right to return on assets,since it is not the trust relationship among the trustor,trustee and beneficiary,but the trade relationship between trustee and the third person who is outside the trust,its effect is same to general transfer of the right to return on assets,which is an effective act of debt and an act of disposition subject to condition.The trust property change to the creditor's right of credit assignment,but lacking to notify the debtor,the debtor may fulfill the debt to the financier,it will cause the trust property further change to returned to the creditor's right of returning the benefits.If the financier bankrupt and the guarantee measures are insufficient to cover the total loss,the trustee can participate in the distribution of all remaining property of the financier on behalf of the trust property.The second part discusses the trust established by the right to return on assets,since it lacks the necessary effective act of disposition in the trust behavior,and cannot realize the independence of the trust property,so the trust could not be established.The value of the trust is the independence and substitution of the trust property which cause the bankruptcy isolation effect,bankruptcy of the financier as a trustor does not affect the beneficiary as investor to keep enjoying the benefit of the trust property,but at the same time,the investor cannot recover the loss of the trust property from financiers,so investors only burden property risk and not burden the credit risk of financiers,which realize the benefits isolation and the risk isolation.However,in trust established by the right to return on assets,financiers have ownership of the underlying assets which cause that the right to return on assets materially affected by bankruptcy of the financier,it means that investors burden extra credit risk of financier beyond the property risk.Since investor takes more risk,to balance the responsibility and rights,investor should be given greater protection.Then the appearance of the trust should be broken,and to recognize lending relationship between financier and investor,so that the investor has the right to recover loss from all the property of the financier without the limitation of the scope of trust property.