Analysis On The Transplant Of Constructive Trust In China

The constructive trust is a tool created by the equity method.The purpose is to use the legal provisions or the discretion of the judge to formulate the relationship between the parties to the trust relationship.Based on the trust relationship,the person who improperly obtains the property interest need to return to the real right holder.Its common classifications include unfair profits of the trustee,breach of confidentiality obligations,the stranger as constructive trustee,correction of errors,and correction of fraud.Regarding its essence,there have always been institutional and restitutional disputes,representing the former as the United Kingdom,the latter as the United States,and of course Canada,characterized by integration.Under the institutional constructive trust,the type of application is fixed.Restitutional constructive trusts prevent the improper benefit of the constructive trust trustee by providing specific property remedies.The development of Canadian constructive trusts is embodied as a fusion: the first category is the unfair result of unjust enrichment,and the second category is the fiduciary duty.There are many controversial issues in the development of the constructive trust in the long-term development process.The most critical issue is to find a theory that can guide and explain the different applicable situations of the constructive trust.The main theoretical foundations of equity are the fiduciary duty,the estoppel of property,the unjust enrichment,and the conscience of equity.The conscience is sufficient to cover the situation in which the defendant in the constructive trust is not profitable or the plaintiff has not suffered losses,so it can be the cornerstone of the restitution law.Corresponding to the law of our country,although there is no trace of the "conscience of equity" in China's current legal system,the principles of fairness and good faith as stipulated in Articles 6 and 7 of the General Principles of Civil Law can have the same effect.The unfair and unreasonable distribution of rights and obligations between the parties and the promotion of legitimate civil and commercial exchanges can be a guideline for guiding the constructive trust.Whether the constructive trust can be transplanted into China's legal system,first of all,it is necessary to examine whether other legal protections in China's practice are extended,and whether there is a need to introduce a constructive trust,that is,"if it is not necessary,do not increase the entity." Taking the 20 th article of the Tort Liability Law as the entry point,this paper discusses the lack of the “disgorgement damages” system highlighted by the tort damage compensation provisions.However,the unprofitable or non-invasive management cannot completely solve the problem.The constructive trust can be a tool for the disgorgement damagessystem with its excellent equity value.The introduction of the constructive trust can effectively improve China's “disgorgement damages” system.When considering the introduction of a constructive trust system,we have to carefully consider the possibility of the system surviving in our country.Judging from the judicial practice,China has already applied the case of constructive trusts,and the results are fair;Judging from the compatibility with the current system,the principle of one ownership on one property has already been broken by the trust law;it will not conflict with the unjust enrichment system,because the constructive trust mainly serves the disgorgement damages;finally,the system of bona fide acquisition will not be affected,because if a third person is bona fide,the system of bona fide acquisition will be given priority.If the legal transplant does not become a paper talk,then we need to prepare the introduction path for it.From the perspective of the type of transplantation,it is more appropriate to consider the weak-integration constructive trust because of the unjust enrichment system in China's current legislation and the lack of vitality in the institutional formulation of the trust.The so-called weak integration type,that is,strong in institution and limited in restitution.It allows only limited discretion,and judges can apply the constructive trust to cases that violate the fiduciary duty.Finally,the author believes that the "Trust Law" as a carrier is superior to the judicial interpretation in terms of legislative cost and benefit,but does not exclude the latter for more specific guidance.In order to truly accommodate the constructive trust,not only should the trust law be modified,but the judicial interpretation should also answer the criteria for judging the obligation of faith and the effect of the constructive trust,thus truly bringing the introduction of the constructive trust into practice.