| As an ancient system,testamentary trust system originated in Britain in the 13 th century and is widely used in many foreign countries.However,China’s testamentary trust system started late.With the enhancement of people’s awareness of property control,most property owners have the ability and will to manage and dispose of property.They hope to complete the distribution of property through their own will,rather than just deal with property by means of legal inheritance.However,according to the relevant provisions of inheritance in the current civil code,there is obviously no legal basis Law meets the needs of judicial practice.China’s trust law implemented in 2001 defines the legislative status of testamentary trust system and brings it into China’s legal system.The“ Civil Code ” promulgated in 2021 has also made provisions on testamentary trust,affirming that testamentary trust is one of the ways of inheritance.Testamentary trust is different from general contract trust.It covers the related content of succession and the field of trust law.In testamentary trust,the trustor sets up a will before he or she is alive and distributes the property he or she needs to dispose of according to his or her will.When the trustor dies,the testamentary trust becomes effective and the entrusted property is managed by the trustee.However,the current legislation on testamentary trust in China only includes the trust law and relevant laws and regulations,as well as the newly added testamentary trust in the succession section of the civil code.Although this system is clearly defined from the perspective of legislation,there is no more detailed legal provisions to provide for it,and there is no legal norm with the characteristics of China’s legislation,which makes it difficult for the secretary It is difficult for testamentary trust system to play its role in legal practice.For example,the legislative style of testamentary trust is vague,and there are different theories about whether it belongs to the regulation of trust related laws and regulations or inheritance related laws and regulations.As a result,testamentary trust system is rarely applied to judicial practice;the establishment are not clearly defined,The property ownership of the trust established by the trustor has not been specified in detail,and there are disputes between the trustee and the beneficiary on the ownership of the property;the supervision and management system of testamentary trust is lack,and there are no effective provisions on the selection of the trustee and the supervisor;the testamentary trust system and the corresponding supporting system are not coordinated,and the tax system and registration system are not improved And so on.Therefore,it is very important and urgent to improve this system.Through the analysis of the current situation of domestic legislation,this paper tries to find a suitable legislative model for the development of our country.At the same time,in view of the current legislative defects,combined with the mature legislative system of other countries,this paper puts forward a testamentary trust system suitable for our country’s Justice and practice.First of all,it is necessary to make clear the necessary conditions for regulating the testamentary trust system,including the establishment and effective conditions of testamentary trust,emphasizing that testamentary trust must be in written form,etc.;third,it is necessary to improve the corresponding supporting system of testamentary trust.Including tax system,registration system,clear “single system”tax way,avoid the phenomenon of repeated taxation of testamentary trust property,establish and improve the trust property registration,formulate laws and regulations related to the trust registration;in addition,clear the property ownership of testamentary trust,and reasonably regulate the property right in the field of civil law according to the relevant theories of property law and relevant regulations of trust law Finally,we should improve the management and supervision system of testamentary trust,clarify the selection criteria of trustee,meet the disposition intention of the trustor to testamentary trust property,establish the trust supervisor system,improve the supervision system of testamentary trust,and maximize the interests of trust property. |
