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Study On Protection Of Testamentary Trust Beneficiary

Posted on:2021-01-20Degree:MasterType:Thesis
Country:ChinaCandidate:C SongFull Text:PDF
GTID:2416330614956981Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The trust system has developed from USE system of medieval UK.At first,it is used as a strict limitation to avoid the law,and also it means Testamentary Trust.Since the Testamentary Trust system has developed until nowadays,it has been changing gradually to a charming property manage tool and is used in familial hereditaments widely.The Testamentary Trust is a special type of trust which is set up by will.Comparing to the traditional will heirdom,it shows its institutional advantages.For example,one principal advantage is that trustors can arrange the heritance for a longer term and more flexibly,at the meanwhile,it can benefit the progeniture by the trust structure design,which can make heirdom benefit from it muchly.Among other things,the Testamentary Trust also has the advantages of risk-isolation,tax avoidance,hereditament conflicts avoidance and so forth.The Trust Law of China,the 13 th ordinance prescripts the Testamentary Trust‘s establishment,and it demonstrates that China acknowledges the Testamentary Trust in law.Moreover,The notification of enhancing trust supervision(the 37 th statement in short)issued in 2018 for the first time made it clear about what is family trust,which is aim at protecting,inheriting and managing family property,therefore the Testamentary Trust should also be called the Family Testamentary Trust.All the functions of the Family Testamentary Trust are admitted officially.Currently,along with increasing income of Chinese people and their changing mind,the demands for the Testamentary Trust is quite large.Nevertheless,Trust system in China is still at the early stage of development,the whole system is not complete enough to support the development of Testamentary Trust in practice.As for the trustors,the Testamentary Trust is the final arrangement for their personal property.The actualization of trustors' equity is the heart of the Testamentary Trust and the aim of why the trustors set it up.But the incomplete system brings the Testamentary Trust into more risk and also more uncertainties to actualization of trustors' equity.So despite a superior system,people dare not to proceed with it.Therefore,we should improve the Testamentary Trust system from the beneficiaries' side to promote the development of the Testamentary Trust in China.This paper is divided into three chapters:Based on the basic theory of beneficiary's rights in testamentary trust,the first chapter clarifies the concept of beneficiary of trust and the particularity of beneficiary's qualification in testamentary trust.Secondly,the content of the beneficial right of the trust is briefly described,and the legal nature of the beneficial right is determined.The nature of beneficial right plays a decisive role in the exercise and relief of beneficiary's right.Through the analysis of three mainstream theories in the academic circle,namely the theory of creditor's right,the theory of property right,and the theory of compound right,the author identifies the nature of beneficial right of trust from the perspective of more beneficial to the protection of beneficiary's interests by combining with the principle of “one property one right” in China's property law system and the relevant provisions in the trust law.Finally,the paper analyzes the particularity of the beneficiary of testamentary trust in the time and way of acquiring the rights,and the weakness of the beneficiary's position in the trust relationship compared with other trust parties,and reaffirms the necessity of protecting the beneficiary's rights of testamentary trust.The second chapter analyzes the present situation and shortage of legislation on the protection of beneficiary's rights of testamentary trust in China.Firstly,the contents of beneficiary's rights,trustee's obligations and other relevant legal provisions are sorted out.Secondly,through case retrieval,to understand the present situation of testamentary trust in China's judicial practice.Based on the current situation of legislation and judicial practice,it is found that the deficiencies in the protection of beneficial right of testator trust in China are mainly manifested in the following aspects: fuzzy standards for the determination of trust effectiveness,insufficient contents of beneficiary's rights,too abstract provisions of trustee's obligations,and insufficiency of other ways for the protection of beneficiary's rights.The third chapter,based on the above analysis of the relevant basic theories and institutional defects,puts forward suggestions for improving the protection of beneficiary's rights in testamentary trust.Firstly,it is found from the judicial cases related to testamentary trust that the current disputes about testamentary trust mainly focus on the validity determination of testamentary trust.According to the present situation of testamentary trust in China and the experience of the comparative law,it is considered that the existing testamentary trust validity determination standard should be adjusted.Secondly,it points out that to realize the protection of beneficiary's rights,we should improve the contents of beneficiary's rights and clarify the contents of trustee's obligations,so as to make the relevant legal provisions more practical.Finally,in the other ways of protecting the beneficiary's rights,it is believed that the improvement of the testamentary trust registration system and the testamentary trust supervisor system is of great importance to the improvement of the testamentary trust beneficiary's rights protection system.The innovation of this paper is reflected in three aspects:Firstly,the current research on testamentary trust system mainly starts from the perspective of the trustee.This paper believes that the protection of beneficiary's rights in testamentary trust is the core of testamentary trust system.Therefore,it conducts research with the beneficiary as the starting point to explore the key points of improving testamentary trust system.Second,by searching cases related to testamentary trust,this paper analyzes the current situation of judicial practice of testamentary trust in China,and explores the deficiencies of testamentary trust system in the protection of beneficiary's rights in combination with the legislative and judicial situations.Thirdly,on the way to perfect the protection system of beneficial right of testator trust,combining with practice,the author puts forward some Suggestions from the aspects of theory and practice.
Keywords/Search Tags:Testamentary Trust, Beneficiary, Beneficial right of trust, Inheritance law
PDF Full Text Request
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