Regulation Of The Different Types Of The Trustee's External Responsibility

There are some problems in the provisions of the China's current Trust Law on the external liability of the trustee,such as unclear positions and overly simple regulations.This has led to many cases of different judgments in the almost same case in judicial practice.Although theoretical studies on the external liability of trustees have a long history,most of them are limited to specific analysis of the problem,and lack of further research to solve the problem.Through the type analysis of the trustee's external liability,this paper clarifies the internal legal logic of the trustee's external liability,in order to improve the norms of the trustee's external liability in the trust law of China.The first part of the article is to put forward questions to show the problems studied in this article and their formation process.Based on the interpretation of the provisions on the external liability of the trustee in the current Trust Law of China,this paper points out that the position of trustee's external liability in China's trust law legislation is not clear.Based on the understanding of the types of liability and the provisions of the United States law on the type of the trustee's external responsibility,this article puts forward the problem that the trustee's external liability is not classified in the Trust Law of China.The second to fourth parts are the core parts of this article.The second part demonstrates that the trustee's external liability can and should be typecast from the following three aspects:the difference between the nature of contractual liability and tort liability,the status difference between voluntary creditors and involuntary creditors compared with debtors,and the views of domestic and foreign scholars on the classification of trustee's external responsibility.On the basis of the classification of the external liability of the trustee,this article demonstrates how the trustee should bear his external contractual liability and tortliability.The third part of the article based on the interpretation of China's "Trust Law" and the relevant legislation and trust theories of major foreign countries holds the view that trust property does not have a subjective status,and advocates that the trustee's external contractual responsibility should unlimited liability to the trustee.Furthermore,on the basis of the trend of foreign legislation and the practical significance of introducing limited liability into the external contractual liability of the trustee in China,this article puts forward that the external contractual liability of the trustee has the basis and significance of introducing limited liability.This article puts forward two specific ways for the trustee to bear the limited liability for the contract liability: first,to indicate the identity of the trustee and the scope of the trust property;second,to agree with the contract creditors to bear liability only with specific property.The fourth part discusses the tort liability of the trustee's external liability.First of all,it is believed that the trustee's external tort liability should be borne by the trustee unlimited liability consistent with the third part of the view that the trust property does not have a subjective status,and combined with the special protection of involuntary creditors.After comparing the differences in the risk allocation of incomplete liability for infringement of trust property between the United States and Japan,it is further studied how the risk of insolvent liability for incomplete settlement of trust property should be more reasonable when the trustee is not at fault.By comparing the reasonableness of the trustee,beneficiary,and creditor's risk of insolvency,this paper proposes that the beneficiary should share the risk of insolvency assumed by the trustee within the existing trust income.Finally,in order to show the core of the article more clearly,highlight the full text,the fifth part summarizes the views of the full text,and puts forward the specific solutions to the problems existing in the legislation of China's Trust Law on the external liability of the trustee.