Research On The Legitimate Purposes Of Self-benefit Trust

The drawbacks of legal evasion function of self-benefit trust are the gradually appear as it is abusing.Although our country’s trust legislation generally limits the legal evasion function of self-benefit trust by the legality clause of the purpose,but our judicial practice does not form the unified rules to determine the purpose of self-benefit trust is legitimate or not.Therefore,this paper mainly studies how to determine whether the purpose of self-benefit trusts.This paper is divided into four parts:The first part is about the tension between the evasion of law and legal purposes in self-benefit trusts.There is an indelible tension between the function which evade the norms of laws of the trust and the legality of the purpose.Judging from the historical evolution of the trust,the trust is to evade a certain rule,and the evasion function of the trust has been playing with the existing legal norms.From the reality demand,the evasion function of the trust will traction legal norms to meet the needs of the direction of social progress,and legal norms ensure that the trust avoidance function can be controlled in the appropriate range.Theoretically,the function of avoidance of trust is the embodiment of private law autonomy,the legal purpose is the embodiment of state regulation,there is always the inherent tension between the private law autonomy and the state control.Judging from the point of view of the trial,the trade-offs come when the judge meet the conflict between avoiding the purpose of the lawevation and in the legitimate or not in the specific case to.It is also because the two have been in a state of tension,we need the balance of interests as a tool to coordinate this tension.Because of the particularity of self-benefit trust in the judgment of interest,this paper only puts forward the principles to judging whether the self-benefit trust purpose is legal or not.The second part is about the legitimate purpose and the principle that does not violate the mandatory provisions of the laws and administrative regulations.It should be recognized as the illegal trust if violate that,which is the primary principle when judging whether the purpose of self-benefit trust is legal or not.In the scope of the legal and administrative regulations,the the mandatory norms should be based on the principle.Especially when judging the mandatory norms of the private law,there is no general way to be combined with but making a comprehensive discussion the social value of the law.In judicial practice,we can not directly refer to Article 11,paragraph 1 of the Law on Trust or Article 52(5)of the Contract Law as a direct prerequisite for judging whether the purpose of self-benefit trust is legal or not,but as a cause clause at he same time that we use the specific mandatory norms.The third part,the legitimate purpose versus the principle that does not harm the social public interests.This principle is a supplement to the primary principle that it is not necessarily lawful when obey the mandatory provisions of laws and administrative regulations and it is still necessary to examine whether the purpose of self-benefit trust is contrary to the public interests.To give a definition of the public interests is difficult,so we need use the political and economic factors to make the overall review.In determining whether the purpose of self-benefit trust against the public interests,we should pay attention to whether the purpose is damaging the national interests,violating the social order and damaging the social welfare and so on.The fourth part is about the purpose of legitimate and the principle that does not harm the interests of third parties.We can not ignore the protection of the interests of the equal subject when we protect the public interest.So the purpose of self-benefit trust shall not harm the interests of third parties."Third parties" not only includes the creditor,it also includes the client and the trustee other than the civil subject.The purpose of using the self-benefit trust to damage the interests of third parties is mainly manifested as fraud upon creditors.In determining whether the purpose of self-benefit trust to evade the debt,we can make a comprehensive study using the principle such as the confidentiality as the client setting up the self-benefit trust,creditor damage and time limit.For the purpose of harming the interests of third parties other than creditors,the method of value judgment should be introduced.