A Preliminary Research On The Cy-Pres Doctrine Of British Charitable Trust

The Cy-Pres Doctrine,which functions as the most flexible and vital institutional arrangement in the British charitable trust field,aims to prevent the trust mechanism from failing when the charitable purposes couldn't be fulfilled according to the donor's will by allowing the court to amend the terms of the charitable trust as closely as possible to the original intention of the donors within a restricted discretion.The Cy-Pres Doctrine has achieved a dynamic balance between "charitable purpose" and "public interest",which are two special elements of the British charitable trust.Thus,an optimal match could be realized between public power and private interest,where public power could involve in private power with limitations and private interest can be combined with public interests.The origin of Cy-Pres Doctrine is extremely relevant to the charitable trust formed during the process of the religious communities accepting the land donation from the believers of the religion.With the religious reform and the decline of the church,the jurisdiction of charitable trust and the Cy-Press Doctrine were reclaimed by the Royals.The doctrine was later inherited by the Court of Equity to fight against common courts of Justice.The Court of Equity then continued to explain and revise the critical factors of the Cy-Pres Doctrine to meet the case justice.With a different view on this matter from the Case Law,Statutory Law constantly refined and interpreted the "precedents" and even the scope of applications were broadened based on specific situations and combining with the social practice,which eventually led to the positive interaction from case law system to legislation.From the "original fail of charitable purpose" to "full consideration of the social and economic environment",the Cy-Pres Doctrine has been going through a process from strictness to tolerance.The Cy-Pres Doctrine has formed a series of operational judging rules and systems during hundreds of years' development:on one hand,we need to distinguish whether it is a "can't be achieved from the beginning to the end" case or a case where "can't be achieved hereafter".In an effort to seek the real charitable purpose behind the scenes,the Court created the concept of "typical charitable intentions".The application of the Cy-Pres Doctrine in the Charity Commission will have to first follow the "stare decisis"and secondly respect the regulations of Case Law and Statute Law.On the other hand,the making of technical "programme" enables it to enjoy the analogous power and discretion with the Courts or Judges and it's quasi-judicial nature is beyond all doubt.Meanwhile,it also prompted the formation of the specialized regulatory agencies and an objective-oriented regulatory system---the Charity Commission as the core,the High Court,the Royal Inspector,local government and the Probate Department as its features.With a gradual recognition by the Anglo-American legal system and continental legal system,the Cy-Pres Doctrine achieved a great development.Subject to specific conditions in different countries,this doctrine has developed variously accordingly.Compared to the UK,the Anglo-American legal system adopted an open and inclusive attitude towards the Cy-Pres Doctrine.However,the continental legal system is relatively far more conservative with twists and turns.On one hand,the continental legal system defines the trust based on protecting creditors' rights,which is extremely different from the Anglo-American legal system way of acknowledging dual ownership of trust.On the other hand,the high degree of flexibility of the Cy-Pres Doctrine and the discretionary power it endued to the Court of Justice goes against with the features of focusing on Statute Law and limiting the discretion of the continental legal system,which resulted in not directly stipulating "the Cy-Pres Doctrine" in most written legislations but indirectly admitting the Court has similar powers.Compared with foreign countries,there is a clear lack of direct expression of the"Cy-Pres Doctrine".And the relevant provisions of the applicable conditions are still quite immature.Not to mention that there is no establishment of relevant supporting system,which has severely restricted the application of this principle in our country.China should stipulate and perfect our own "Cy-Pres Doctrine" as soon as possible in the process of legislation.