Study On Trustee Rights Of Family Trust In China

With the accumulation of national wealth,family trust,as a way to realize wealth appreciation and preservation as well as family governance and spiritual inheritance,has been paid attention to and favored by more and more wealth owners.As an effective solution to the problem of "from clogs to clogs in only three generations " in other countries,family trust has been introduced into China in recent years but without breakthrough development.The ownership of trust property,trust registration,trust tax and other problems have attracted the attention and discussion of many domestic scholars and practitioners.However,from the internal analysis of the family trust relationship,the trustee's right to engage in the trust management activities is limited,and the failure to promote the realization of the value of the family trust is an important reason for the great loss of the charm of the family trust system.Trustee is in the core position of family trust,his operation and management of family trust property and affairs are related to the realization of the purpose of family trust.Rapidly changing markets and complex affairs have raised higher demands on the trustees.Trust,trust and trust.But without the trust,without adequate rights and enforcement mechanisms,how can the trustees manage actively and effectively? In this article,trustee rights of the family trust as the research object,through to presenting the current situation,it is pointed out that the limited exercise of the trustee's rights hinders the development of family trust in our country.And then based on the main body of trustee and the trustee's rights theory analysis,as well as thecomparison and reference of the two major legal systems to the trustee's rights in family trust,finally put forward the suggestions from the legislation value orientation,arrangement on rights and obligations system,design of the balances mechanism,and the judicial practice,in order to build a trustee rights system of family trust,and promote the development of family trust system.The paper is divided into four parts:The first part,the present situation and problems of the right of the trustee of family trust in China.In the first section of this part,by introducing two examples of family trust in China,it is pointed out that the function of family trust in China mainly remains in the aspect of financial management,and family trust only exists as a "channel",which is far from the value and function of family trust should have.The second section analyzes the problems reflected in the aforementioned phenomenon that the rights of the trustees of family trust are limited and the management of family trust property cannot be fully exercised.The second part,analysis of the main body and rights of the family trust trustee in China.This part,by introducing the basic theory of the trustee subject and the trustee rights in the family trust respectively,analyzes the inadequacy between the system and practice related to the rights of the family trust trustee in China at present,and lays the theoretical foundation for the improvement of the system.In section one,the subject of family trust trustee is first introduced,and the qualifications of family trust trustee are analyzed according to the trust law and in combination with practice.At the same time,including unincorporated organization into the scope of trust trustee for family trust management is proposed.Then it introduces the existence of an important category among family trust trustees--the joint trustees.After that,through the comparison between the family trust trustee and the agent in the entrusted relationship,this paper further points out the significance of the rights of the family trust trustee in the realization of the purpose of the family trust and the promotion of the development of the family trust.In the second section of this part,the attribute of trustee's rights are discussed first,and then the functional rights of the trustee as the manager of the family financial trust are clarified.Secondly,it introduces the sourceof the rights of the trustee of the family trust,then the fiduciary rights can be standardized through the definition of the source of rights,and the legitimacy of the exercise of rights can be judged.This paper expounds the dialectical relationship between the rights and obligations of the trustee again,and points out that the rights enjoyed by the trustees of the family trust are also duties.Finally,three major rights of the trustee are introduced,and an analysis of the impact of these rights provisions on practice is made to help refine the design of the opinion below.The third part is the comparison and reference of the trustee rights of the two legal systems.This part of the first section introduces the different legislative way about in common law system and civil law system respectively,through the different legal systems in main countries and regions of legislation comparison,put forward the idea that with reference to common law system and specific provisions regarding the trustee rights,in order to ensure the trustee to manage the trust affairs better and achieve the purposes of the trust of the family.The second section introduces and compares the main trustee rights in trust legislation of the two legal systems,and thinks that it is necessary to use foreign legislation way to give our trustee reasonable space of rights.The fourth part is the tentative idea of establishing the system of rights of the trustee of family trust.This part aims at coming up with several ideas by solving problems of the trustee's rights in the implementation of the family trust system in China and referring to foreign legislation and operation of the family trust trustee's rights.Firstly,adjusting legislative value orientation.Secondly,listing the main types of rights of the trustee,requiring the legal rights of the trustee to be clarified and appropriately expanded,and the rights of the client to be moderately weakened in order to realize the reconstruction of the legal status of the trustee and correct the unbalanced distribution of rights and justice.Thirdly,through setting up trust supervisors,clarifying the responsibilities of trustees,setting up joint trustees and distinguishing the responsibilities,etc.,to create the mechanism of checks and balances on the rights of trustees,so as to make the trustees stand at the core of the trust and perform their duties actively and properly.Fourthly,it is suggested that thesupreme people's court should introduce the judicial interpretation of trust law and form typical case guidance to make up for the weak applicability of trust law at present and increase the predictability of the operation of family trust trustee and the exercise of rights.Fifthly,it is recommended that rich the subject form of family trust,strengthen the trustee internal risk control and increasing profession association autonomy,so that provide strong support to the development and prosperity of family trust business.At the same time,considering that the construction of the rights system cannot be accomplished overnight,the author differentiates the short-term,medium-term and long-term goals according to the difficulty level of the implementation of the above schemes,so as to realize them one by one.Finally,a relatively perfect and complete operation system can build up,the rights of trustee guaranteed and standardized,family trust in China will develop well.