Legislative Improvement On China Testamentary Trust System

Testamentary trust refers to a system of disposing heritage through a trust created by means of wills. That is, the testator have the estate planning,including management, distribution,usage and payments stipulated in details in wills beforehand,then the testator will transfer the property to the trustee as long as the will takes effect,the trustee has the right to manage and deposit the trust property in accordance with the trust instrument for the sake of the beneficiary or special objective.The system has an unparalleled superiority on property management,capital financing,enterprise heritage,legal tax avoidance,avoiding disputes,etc.Testamentary trust can be traced back to Roman Times while modern testamentary trust originated from UK system of usufruct.This system has been widely used in western countries and successfully transplanted to civil law countries such as Japan.Although our country has explicitly stipulated the testamentary trust system in "the PRC Trust Law",the testamentary trust in practice is blank due to traditional concept and overly valuing commercial trust.With the development of economy and spread of trust concept,more and more people put forward strong demand on testamentary trust system.Our current legislation is monotonous,abstract and even self-contradiction on content,and lack relevant auxiliary system, which hinders further development of the system.This article focus on analyzing legislative defect and loopholes on our testamentary trust and improving the system.This article is divided into four chapters.Chapter I summarizes the Testamentary trust system,including the origin of the trust、its development general situation in several countries and the concept of the testamentary trust.Compared to testamentary succession、legacy and other similar concepts,Testamentary trust system has obvious superiority.Chapter II analyses the basic legal relationship-subject,object and operation on the basis of comparison with foreign countries.Chapter III elaborates legislative defects on improving the testamentary trust system in our country.Our inheritance law and trust law lack operability and exist the following problems:legal clauses conflict on establishment and validity of the system;the ownership of the trust property is opaque;lacking of publicity rules; lacking rules when the testamentary trust violates the Compulsory Portion in inheritance law; no obvious responsibility distinction between the trustee and the executor; no duration limitation and supervision on the system,however,more and more people have strong demand on testamentary trust to manage property,inherit enterprises and help the weak. It is necessary to improve our testamentary trust system.ChapterⅣoffers several solutions:improving the establishment and validity mechanism,the testamentary trust comes into force as long as the principle dies;explicitly stipulating the ownership of the trust property belongs to the trustee while the beneficiary possesses trust benefits,conferring more rights for the beneficiary and imposing more obligations on the trustee to realize trust aim;establishing different publicity rules according to different property;establishing regulations to resolve conflicts between testamentary trust and the Compulsory Portion;restricting duration and setting up systematic、specialized and comprehensive supervisory system.