Thinking Of Civil Testamentary Trust

The testamentary trust is a system both antiquated and full of newintention. It is old because it originated from ancient Rome era. It is full ofnew ideas because it innovates and develops continuously up to now.In this paper, a practical comparison of the testamentary trust’sfunction is firstly made with six cases. Among these cases, one is fromAmerica, one from England, one from Hong Kong, and three fromMainland China. By comparing, it can be concluded that the testamentarytrust system need to be improved in legislation and established in practice,which then leads to the testamentary trust system to be explored.In the first chapter, the author tries to explore the concept of thetestamentary trust to make its definition clear. Through a historical analysis,a legislative analysis and a comparison of related concepts, the truemeaning of the testamentary trust is finally concluded. A graph is given toillustrate how it works. Hereon, different from the way that treats thetestamentary trust as a unilateral legal act, the author treats it as a bilaterallegal act and a special trust contract. Accordingly the concept concerningthe testamentary trust is changed. In addition, regarding to the origin of thetestamentary trust, the author agrees with the view that it originated fromthe ancient Rome heritage trust system. But the author does not deny thatthe modern trust system originated from the British ‘USE’ system.Sequentially, the dispute about the origination of the testamentary trust isreconciled from an institution origin approach and a new system approach.With the analysis of the testamentary trust system’s appearing anddisappearing, and regeneration, we can see the system’s strong practicalvalue to society and the inspiration of the future development in ourcountry.In the second part, the author gives some analyses on the coincidenceof the testamentary trust system and the idea of civil law. From the view ofautonomy and the legal interest of property, the mutual support andcoordination between the testamentary trust system and the idea of civil law is more obvious, which provides foreshadowing of principles of civillaw to the development of this system in our country. In this part, the wayto explore the idea of civil law and the combination between it and thetestamentary trust system still remains to be improved, which needs a betterunderstanding of civil law. But the author feels slightly ashamed.In the third part, the author focuses on the interpretation and analysisof the existing provisions in the related law system in our country and thenpoints out the systematic and logical omissions and contradictions in thetestamentary trust system and related system in our country. After that, thelegislation system and the actual legislation of foreign testamentary trustare sorted simply. By the comparison of domestic and foreign law and evenbetween the foreign law itself, some characteristics, the methods oflegislation and contents of foreign law system can be reached at. On thisbasis, considering the problems in our law system and the related practiceof foreign law system, the author establishes his own thoughts andinspirations, which paves a way to solve these problems.In the fourth part, it focuses on solving the future civil law entrance ofthe testamentary trust system in our country. Firstly, the author uses thedevelopment status of the testamentary trust system in our country as abeginning. Different from the legal analysis in the third part, this part usesrealistic analysis to bring the urgency of improving the testamentary trustsystem in our country. Secondly, based on the analysis of the idea of civillaw, the author sets up four essential principals for the testamentary trustsystem. After that, based on the cases in the opening of this paper, theauthor elaborates ways to make the testamentary trust system’s functionperfect and more related cases are described in detail.Finally, regarding to the legal problems of the testamentary trustsystem itself in the third part and other related systematic problems, theauthor solves them one by one and then draws a conclusion by designing itsown system in detail.