"Trust Law" Article 49 Of The Judicial Remedy For Conflicts Of Rights

Article 49 of the trust law grants the settlor and the beneficiary supervision,including the right to adjust the methods of trust management,the relief right to the damage of trust property and the right to remove the trustee.But it doesn't prescribe the sequence of exercising right or the methods of reaching consensus.The right conflict will produce when the settlor and the beneficiary exercises the same right and have different opinions which can't be achieved simultaneously.If the right conflict is solved improperly,it will not only have negative effects on the handling of trust affairs and increase the cost of trust management,but also destroy harmonious and stable trust relationship,and hinder the development of trust business.However,the article 49 of trust law only says if the right conflict between the settlor and the beneficiary produces,they can file lawsuits to the courts.Though settling the right conflict by court has its rationality.The article 49 is so simple that it doesn't stipulates the judicial criteria,which will produce clashing judgements and undermine the unification of legal system,and legal proceedings.Because of the particularities of trust,the general regulations of civil procedure law can't be applied to the litigation concerning the right conflict between the settlor and the beneficiary.In order to settle the right conflict effectively,this thesis studies the judicial criteria of the application of the rights,the application of judicial criteria and specific judicial relief system which is suitable for the particularities of trust.The judicial criteria of the application of the rights.The aim of judicial relief of the right conflict is to make clear how to exercise rights.But the article 49 doesn't say what criteria should be used to analyze how to exercise rights and determine the content of rights.For the sake of preserving the expectability of law and the unification of legal system,this paper establishes two criteria,including the criterion of trust purposes and the criterion of beneficiary's benefit,determines the order of two criteria,and analyzes the application of judicial criteria in the judicial relief of right conflict.The specific judicial relief systems which are suitable for the particularities of trust.Trust system has particularities,such as trust legal relationship involving tripartite litigants and joint settlors or beneficiaries,the separation of trust management and trust proceeds and so on.So the following special arrangements need to be made in the judicial relief system of rights conflict to adapt to the particularities of trust.First,the trustee will be encountered as a third party in the judicial relief procedure of rights conflict,which can not only bring trustee into the bond of judgement,but also reduce negative impacts on trustee.Second,the practice of joint beneficiaries' rights should be made clear,then litigation status of them should be determined.For example,because the trust law does not stipulate how joint beneficiaries exercise the right to adjust the methods of trust management and the right to remove the trustee,the way of perform these rights could be co-exercised by all beneficiaries,and their lawsuit status will be co-plaintiff or co-defendant.Third,make reasonable compensation mechanism between joint beneficiaries,allowing beneficiaries who sue to get a fair proportion of the properties obtained from judicial relief as compensation for beneficiaries' attorney fees and travel expenses,to avoid them from delaying in perform rights because of hitchhiking.Fourth,adjusting burden of proof.In the judicial relief of the relief right to the damage of trust property,if the settlor or the beneficiary has proved that trustee violates the management duties,handles the trust affairs improperly and the loss of trust property,we can infer that there is a causal relationship between trustee's misconducts and the loss of trust property.