The Subjectivity Of Trust Property

For so long,the traditional mainstream opinions on trust property have limitations of perspective and stereotypes.It considers the trust property only as the object of right,and always takes the determination of the ownership of trust property as the logical starting point to explore the rights and obligations of the parties,when discussing the nature of trust.This so-called“only the object of right”theory..This theory,which totally denies the subject identity of trust property,is not only deep-rooted,but also has exposed the weakness: On the one hand,the explanatory power of this theory is quite constrained,which cannot resolve the contradiction tension between the trust property and the trustee,cannot support the claim that "trust property can be the subject of tax payment",and is hard to prove the legitimacy of "trust property bankruptcy" and explain the phenomenon of the systematism of commercial trust.On the other hand,the theory obstructs the possible route to solve the problem of reality,such as " separate management chaos "," dilemma in ownership of property rights ","the referee thought limitation in business disputes of asset management ";obstructs the possible improvement route,such as " the exercise of shareholding rights of asset management plans "," the establishment of trust unit crime" and "trust registration system”.Based on the above weaknesses of the "only the object of rights" theory of trust property,the legislative and academic views have changed their standpoint.In accordance that approbation degree of subjectivity of trust property from weak to strong,it appears in sequence as four different cognition levels: "the object as entity","the selective subjectivation","the organization of special type","the general subject status".In the aspect of the justification of the subjectivity of trust property,the basic ideas are: firstly,the trust property is a "patrimony by appropriation".The trust has the foundational characteristics,while special types of trusts are organizations;Secondly,the "freezing capacity " of the trust purpose makes it independent from the purpose of the trustor,the trustee and the beneficiary,which is the root cause for the trust property to gain independent personality.The independent meaning,independent property and independent responsibility brought by it are direct causes.As a result,the trust property meets the substantive conditions for gaining the legal person qualification,it does not have the legal subject status for now is only the consequence of legislative choice,with no essentially theoretical obstacle.The legal regulation of recognizing the subject qualification of trust property should be conducted step by step.According to the current stage,it can adopt "the implied doctrine of trust law",namely,to acknowledge the legal subject status of different types of trust property discriminatively.In the design of rules,it requires to consider three elementary factors: respect the intention and demand of the settler,take public interests into account,and the realistic recognition of the personification and organization of some types of trust.On this basis,recognize subject status of commercial trusts and charitable trusts by default rules,of civil trusts by enabling rules,of special trusts by peremptory rules.