Reflection And Reconstruction On The Right System Of Settlors' In The Commercial Trusts

In the trust relationship,the settlor is the designer of the trust terms,the source of the trust property,and the beneficiary enjoy the benefit of the trust interests.Both of them have legal benefit in trust.Therefore,China's trust law entrusts both the settlor and the beneficiary with the legal right to supervise the trust.The trust laws of Japan and Korea,Taiwan region and China's mainland all coordinate the difference of opinions between the settlor and the beneficiary through the intervention of the court,and eliminate the conflict of rights between the settlor and the beneficiary.However,this paper holds that the essence of the rights conflict between the settlor and the beneficiary is that the settlor and the beneficiary share the rights of trust supervision.Under the circumstance that modern trust law has generally recognized the supervision right of the trust beneficiary,it is necessary to reflect on the right of the settlor.By comparing the provisions on the settlor's rights in civil trust between the trust law of common law and civil law,this paper finds that the settlor's rights are different in the two law systems.According to the trust law of common law system,the settlor of revocable trust can reserve the right to control the trust property for himself through trust documents,but the settlor must bear heavy tax burden;The settlor of an irrevocable trust has almost no right to the trust property after the trust is established.The trust law of civil law endows the settlor with a lot of legal rights to supervise the trust.This paper argues that the legal reasons why the settlors are titled with a large of rights to supervise trust in civil law countries(regions) lies in the contract mechanism and the ownership logic.According to the contract mechanism,the settlor is the party of the trust contract and has reasonable expectation for the promise of the trustee to fulfill the contract obligations.The ownership logic holds that the settlor has the ability to control the trust property,and is actually the owner of the trust property,thus enjoying the right of trust supervision.Both contract mechanism and ownership logic reflect the individualistic value tendency of civil trust.Therefore,the legal reason why trust laws of civil law countries(regions) entitle settlors with legal rights to inspect the trust is individualistic value tendency of civil trust.This paper holds that neither the contract mechanism nor the ownership logic can be the legal basis for the commercial trust settlor to enjoy the right of trust supervision.Commercial trust has the characteristics of consideration,restriction of settlor's freedom and liquidity,etc.Its essence is the transaction between settlor,trustee and beneficiary,rather than the tool for settlor to realize its property control desire and control freedom.Therefore,the settlor of commercial trust has no reasonable expectation to pay attention to and supervise the operation of the trust.The contract mechanism cannot be the legal basis of the supervision right of the commercial trust settlor.At the same time,the commercial trust settlor collects the consideration when establishing the trust,which has completely transferred the interests and risks on the trust property,so she is not the owner of the trust property.The ownership logic cannot be the legal basis for the commercial trust settlor to enjoy the right of trust supervision.This paper holds that since the two legal basis of the settlor supervision right in the civil trust cannot be established in the commercial trust,it is necessary to reflect on the status of the settlor right in the commercial trust.In this paper,trust is divided into "trust contract" and "trust" dual structure,and the rights of the settlor are not the same in them two.At the level of "trust contract",the settlor has reasonable expectation on the contractual obligation of the trustee to establish the trust,and shall enjoy corresponding contractual rights.At the level of "trust",the settlor has no interest in the operation of the trust after its establishment and should not enjoy the right of trust supervision.Based on the necessity analysis of the rights of the commercial settlor,this paper puts forward three Suggestions on the reconstruction of the rights of the commercial settlor in order to solve the rights conflict between the settlor and the beneficiary.The best way is to delete the legal right of commercial trust settlor to supervise trust;The second best way is to position the rights of commercial trust settlor as contractual rights.The third best way is to establish the legal transfer system of the status of commercial trust settlor.