Research On The Perfection Of Chinese Rules Of Choice Of Law Of Trust

Since the strategy of “going out”,the liquidity of wealth in China and even in the international community has been increasing.Trust,which has been defined as one of wealth management tools since its inception,has attracted more and more attention because of its flexible applicability.According to the data in the Analysis of the development of China's trust industry in 2019 issued by China Trust Industry Association on March 20,2020,by the end of 2019,the fund scale managed by the trust industry has reached 21.6 trillion yuan.Generally speaking,in such a booming trust business market,the frequency of foreign-related trust disputes will increase accordingly.Based on Article 17 of the law of the people's Republic of China on the application of the law of the people's Republic of China on the choice of trust law,the author searches the cases on the Internet of judgment documents from April 1,2011 to April 1,2020,and the results show that the number of cases is zero.Therefore,the author explores the root of the “zero” Application of trust law selection norms in China,and studies the characteristics of trust law selection norms in the Convention on the application and recognition of trust law formulated by the British and American countries and the Hague Conference on private international law,so as to provide suggestions for the improvement of trust law selection norms in China.As the saying goes,know yourself and your enemy,and win every battle.The purpose of this paper is to analyze the norms of trust law choice in China and put forward corresponding suggestions for improvement.Therefore,it is not only necessary to elaborate the relevant terms and theories in private international law,but also to sort out the current legislative and judicial status of the norms of trust law choice in China,so as to provide conditions for the later discussion.This paper first analyzes the related concepts involved in the topic,and expounds the related theories.In a word,this paper analyzes the definition of trust,and sorts out the existing trust types in Britain,America and China.In addition,considering that the trust system belongs to a kind of “foreign product” for the countries of civil law system,although some countries of civil law system have accepted the trust system in succession,there are many differences in the provisions of the trust system due to the differences between the two legal systems,resulting in the legal conflicts of trust.At the same time,this paper combs the current situation of legislation and judicature since the establishment of trust law selection norms,and summarizes and analyzes the cases that Chinese courts should have handled as foreign trust disputes in the form of tables.The root of the “zero” Application of trust law choice norms in China's courts should also be traced back to the problems in the definition of the nature of trust system in China's trust substantive law.In the law on the application of law in civil relations concerning foreign affairs,which was issued in 2011,the nature of trust was not defined accurately,which led to the law on the application of law in civil relations concerning foreign affairs placing trust in the chapter of civil subject,while before that,the law on the application of law in civil relations concerning foreign affairs(draft of proposal)placed trust in the part of contract.There are different views on the nature of trust in academic circles,which define trust as property right,contract or civil subject.Based on the analysis of the 10 cases that the author summarized that should be treated as foreign trust disputes,it can be seen that multiple legal relations are intertwined and complex in the foreign trust relations,which puts forward a test to the judges' identification ability in China.In addition,the trust law of the people's Republic of China stipulates civil and commercial trust,testamentary trust,public trust,etc.in the measures for the administration of charitable trust,charitable trust is also recognized in the form of ministerial rules and regulations.However,in Article 17 of the law of the people's Republic of China,only the word “trust” is used to take the whole situation,which is consistent,and there is some suspicion of being missed.There are also ambiguities in the identification of the link points of the selection norms of the trust law.The nature of the “property” in the trust property is unclear and the “occurrence” in the occurrence of the trust relationship is unclear.If we put these problems aside and ignore them,it will inevitably lead to our country's impact on the identification of foreign-related trust relations,so we cannot reasonably apply the norms of trust law selection.As the birthplace of trust,British and American countries have quite mature regulations on the selection of trust law.In addition,the 15 th meeting of the Hague Conference on private international law has passed the Convention on the application and recognition of trust law in 1992,which also regulates the selection of trust law.Therefore,the analysis and discussion of the trust law choice norms of the Anglo American countries and conventions,and the summary of the characteristics of the relevant provisions can provide some reference for improving the trust law choice norms in China.The nature of trust system in England and America can be seen from the common law ownership and equity ownership granted to trustee and beneficiary respectively.In terms of the norms of trust law selection,both Britain and the United States and the Convention adopt the system of classification and division,which divides the trust into living trust and testamentary trust,and then divides the two kinds of trust into living movable trust,living real estate trust,testamentary movable trust and testamentary real estate trust again,and classifies the testamentary trust and trust,which is called “classification”;for the same trust it is divided into the validity of trust,the management of trust and the interpretation of trust documents.For each type of trust and different aspects of the same trust,the common law has stipulated the corresponding legal selection norms,which constitute a large number of categories and a complex system of trust legal selection norms.Based on the analysis of the problems existing in the application of trust law selection norms in China's courts and the relevant provisions of trust law selection norms in the United States,Britain and the United States as well as in the conventions,this paper puts forward suggestions on the improvement of China's trust entity law,trust law selection norms and seeking to join the Convention on the application and recognition of trust law.In the aspect of trust substantive law,this paper holds that the nature and position of trust system should be clarified,and the trust types suitable for China's national conditions should be appropriately added to the articles of trust law;in the aspect of the selection norms of trust law,this paper holds that trust has a unique legal structure,so the scope of trust identification in China can adopt the practices in common law and conventions,and properly implement classification and segmentation system based on China's national conditions.As for the connection points in the norms of trust law choice,this paper thinks that it should be explained clearly by making judicial interpretation or amending the law on the application of law in civil relations concerning foreign affairs of our country;as for seeking to join the Convention,this paper thinks that the internal legal principles and future legislative direction of the regulations of trust law and the norms of trust law choice in our country have something to do with the provisions of the Convention.We should strengthen the communication and exchange with the international community in law.Therefore,it is necessary for China to seek to join the Convention on the application and recognition of trust law in due time.The main framework of this paper is divided into four chapters.The overview is as follows:The first chapter summarizes the origin and research background of the problem,and combs the current legislative and judicial situation of the trust law selection norms in China,and summarizes 10 cases that should be treated as foreign trust disputes,and analyzes them,which leads to the discussion of the specific issues in the following article.The second chapter explores the root causes of the application of “zero” in the trust law selection norms in China's courts,mainly including the unclear definition of the nature of the trust system,foreign trust cases being defined improperly by Chinese courts and the inherently inadequacy of China's trust law selection norms,which lays the groundwork for solving this problem later.The third chapter analyzes the norms of trust law choice in the British and American countries and the Convention,and summarizes the characteristics of the relevant provisions in the Convention as the birthplace of the trust system,so as to provide some references for our country.Based on the previous analysis,the fourth chapter puts forward suggestions from three aspects: trust entity law,trust law selection norms and seeking to join the Convention.