The Study Of The Application Of Law For The Foreign-related Relations Of Trust

In 2011,Article 17 of LAW OF THE PEOPLE’S REPUBLIC OF CHINA ON THE LAWS APPLICABLE TO FOREIGN-RELATED CIVIL RELATIONS specifically regulates the applicable law of trust.However,the " LAW OF THE PRC ON THE LAWS APPLICABLE TO FOREIGN-RELATED CIVIL RELATIONS " has been implemented for nearly ten years.The conflict rules of trusts show "zero application",which is in sharp contrast to the current vigorous development of cross-border trust activities.For this reason,this article discusses the applicable law of foreign trust relationships,from the recognition and application of foreign trust relationships.In addition to the introduction and conclusion,this article is divided into four chapters.The first chapter is "Judicial Situation and Problems of the applicable law of trust".This chapter is divided into two sections.The first section makes a categorized compilation and a holistic analysis of the judicial practice of foreign-related trust disputes in China.It points out that there are judicial cases involving foreign-related trust disputes that ignore foreign-related,misidentify trust relationship,ignore pre-determined issues,and evade trust disputes and other issues.For cases that should have been applied to foreign-related trust laws,the court adopted a variety of judicial conversion channels,thereby circumventing the application of Article 17.The second section analyzes this judicial conversion path from the perspective of trust jurisprudence and comparative law,which results in biased judgment results,including damage to the validity of the trust,destruction of the fiduciary value under the trust law,disruption of the design of the trust subject ’s rights,and the application of improper trust relief for breach of trust.the way.Chapter 2 "Exploration of the Root of" Zero Application " Article 17".This chapter is divided into two sections.The first section analyzes the roots of the "zero application" phenomenon of foreign-related trust conflict rules.It first traces back to the difficulty of identifying foreign-related trust relationships,and points out that the existing courts ’laws on trust relationships and foreign-related characteristics.There are many problems in identifying legislation,including unclear legislation for the definition of trust relationships,failure to address the independence of trusts in the provisions of the case,and the unique relationship structure of trusts.In addition,conflicts in the identification of trust relationships in various countries have not been resolved,especially in conflicts of the legal nature of trusts and conflicts of legal types of trusts.The second section focuses on the legislative issues of foreign-related trust conflict norms.On the one hand,“Article 17” has the problems of limited applicable trust types and unclear applicable disputes of trust disputes;on the other hand,“Article 17” exists defects.The principle of autonomy of meaning cannot reflect the value of the trust entity,the principle of the closest connection is absent,and the connection point is rigid and difficult to apply.Chapter 3 "International Legislation and Reference for Foreign-related Trust Conflict Regulations".This chapter is divided into two sections.The first section is an analysis of international legislation on the identification of foreign-related trust relationships,starting from the definition of the foreign-related nature of the trust and the definition of foreign-related trust relationships.Among them,the definition of the foreign-related nature of trust in comparative law adopts three methods: traditional factor analysis,subjective selection,and economic benefit analysis;the identification of trust relationships mainly introduces the Hague Trust Convention and the American model.The second section is a comparison of international legislation on conflicts related to foreign trusts.It first introduces the characteristics of the applicable laws of the Hague Trust Convention,and then conducts a comprehensive analysis of foreign legislation.Chapter 4 "Perfect Application of Foreign-Related Trust Law".This chapter is divided into three sections.The first section clarifies the value objectives of the application of foreign trust law,that is,to maintain the validity of the trust,to adjust the conflict of trust law,and to regulate the trust behavior of the trust subject.The second section is the method of recognition foreign-related trust relationship.It proposes the essential elements of the trust that use the "representation of the transfer of property rights of the principal" and "the property held and managed for trust purposes" as the path to identify the trust relationship;The definition of the "foreign-related nature" of the trust can be optimized on the basis of adhering to the traditional analytical element method,including excluding irrelevant subject-related foreign-related factors,adopting a holistic principle for the definition of the foreign-related nature of the trust property,and defining the facts in conjunction with the trust conflict standard connection Elements;at the same time,on the basis of making good use of traditional analytical methods,the foreign-related nature of the actual control right and the applicable law can be regarded as the underlying elements;for the scope of application,"the validity of the trust,its construction,its effects,and the administration of the trust" can be adopted.Affirmative enumeration of "others" and excludes the negation of "pure external relations and prerequisites".The third section improves the rules of foreign-related trust conflicts.On the one hand,it adheres to the principle of self-determination and correction of self-determination,and does not set restrictions on the form of legal choice but reasonable restrictions on the subject and content.