On The Legal System Of Testamentary Trust

The trust system originated in Britain at the earliest.As an imported product,it has influenced the legal system of the United States,Japan and other countries.The trust system,with its exquisite principle structure and institutional arrangements,has had a wide and far-reaching impact worldwide,and has been used for reference by many countries and regions.With the continuous development of the socialist economy,testamentary trust has already entered ordinary families from the past elite families.The Trust Law of the People’s Republic of China,passed in 2001,has laid the cornerstone of China’s trust law.The promulgation of the Civil Code in 2020 has made testamentary trust come into the public view again.The newly revised inheritance system has more adapted to the needs of reality,adding testamentary trust to testamentary inheritance one of the three ways in which wills dispose of personal property.It can be predicted that with the expansion of the scale of the estate and the popularization of the concept of trust,the situation of estate disposal through trust will increase day by day,and the corresponding case disputes will grow and become more complex.The contradiction between the rules of the Trust Law and the Civil Code will also become increasingly prominent.Therefore,the testamentary trust will be explored in the existing legal framework and comprehensively considered it is extremely necessary to systematically analyze and seek the appropriate way to make the testamentary trust system Chinese and improve the existing deficiencies of the system.The provisions of testamentary trust in the Civil Code only serve to confirm the validity of testamentary trust,and do not involve the improvement of specific rules,nor solve the contradiction between trust rules and testamentary rules.Britain and Japan are two typical representatives of testamentary trust in countries of Anglo-American law system and continental law system respectively.These two countries have both similarities and characteristics in the design of specific rules of testamentary trust,which provides a good reference for helping to build China’s testamentary trust system.The construction of China’s testamentary trust system can be divided into four aspects: First,clarify the identification of testamentary trust property,clarify the core issue of the ownership of testamentary trust property rights to the trustee,and change the registration method of trust property to registration antagonism.The second is to make up for the defects in the establishment and effectiveness of testamentary trust.The establishment should not be limited to the existing written form.The establishment should not be bound by the commitment of the trustee.It should further clarify that testamentary trust is established and effective when the will takes effect.The third is to fill the gap in the change of the legal relationship of testamentary trust,add the provisions on the right of change and termination of the beneficiary,and add the relevant contents of the special and mandatory share system,adopt the principle of "prohibition of perpetuity" to limit the time.Last,is to upgrade oversight framework of testament execution.On the basis of refining the provisions of the trustee’s rights and obligations and implementing the contents of the beneficiary’s supervision power,the beneficiary agent and trust supervisor system will be added to realize the all-round and effective supervision of testament trust.