Research On The Exercise Of The Right To Terminate The Trust

Modern trust is mainly established by the trust contract,so it is easy to get confused between the dissolution of trust stipulated in article 50 and article 51 of the trust law of China and the termination right of the trust contract itself.In view of the fact that the framework of China’s trust law is established on the basis of referring to the trust law of other countries of civil law system,the right of rescission of trust,as a right explicitly stipulated in the trust law,has a completely different connotation from that of the trust contract.The right of rescission of trust refers to the right granted by law to the parties to make the trust come to an end,and the right of rescission of trust and the right of rescission of trust contract are two independent rights.The confusion between the two is not only caused by the lax use of legal terms in the process of legal reference,but also due to the complexity of the nature of trust,that is,the trust has the characteristics of both contractual and property.However,nature of the trust debate since the trust system to produce is related scholars debate topic.This problem has no conclusion till now.But with the passage of time it spawned many theories.However,the theory of the trust contract and the theory of the trust property is still the mainstream of the nature of the trust theory.It also explains that the trust termination right has the connotation of independence in the trust system.This paper starts from the exercise of the right to rescind the trust and focuses on the analysis of the legitimacy and source of the right to rescind the trust.To clarify the necessity of restricting the exercise of the right to rescind the trust and construct the restrictive path;Clarify the legal attribute of the right of rescission of trust to construct its exercise procedure.The legitimacy and source of the right of rescission of trust.From the perspective of the legitimacy of the trustor’s rescission right,theoretically,the expansion of the trustor’s right and the prominence of the trustor’s position make the granting of the rescission right reasonable.In addition,the procedure of entrusting the trustor to discharge the trust and refining the exercise of the right embodies the principle of justice and efficiency.From the perspective of China’s legal provisions,the following two points reflect the legitimacy of the existence of the trustor’s right to rescind the trust: article 50 of the trust law embodies the combination of the rights of the trustor and the beneficiary in the self-beneficial trust,and article 51 stipulates the relief of the beneficiary after the beneficiary infringes on the trustor.From the perspective of the legitimacy of the rescission right of the trustee’s successor in the self-interest trust,in the self-interest trust,the trustee’s successor is granted the right to rescind the trust after the death of the trustor,which is correspondingly the option of allowing him to inherit the beneficial right of the trustor and make the trust continue.Thus,from the perspective of the stability of the trust operation,the efficiencyand benefit maximization of the management of the trust property as well as the realization of the interests of the heir,it reflects the legitimacy of the termination of the trust by the heir.The source of trust rescission right mainly comes from the direct provisions of law and the agreement of trust documents.The necessity of restricting the exercise of the right of rescission of trust and the restricted path.The need is twofold.First,the exercise of the right to rescind the trust is bound to the interests of the trust beneficiaries.Due to the status and special role of the beneficiary in the trust relationship and the treatment of the typecoming of the trust rescission right,the exercise of the trust rescission right of different types has different binding force on the interests of the beneficiary.Second,the exercise of the right to rescind the trust will conflict with the rights of the trustee.Therefore,based on the principle of trust law and the particularity of trust legal relationship,the exercise of the right to rescind the trust must be strictly restricted.There are three restrictions: first,the execution of the trust rescission right under the circumstance that the trustor agrees to retain the rescission right shall require the consent of the beneficiary;Secondly,the trustee’s right should be relieved after the discharge of the trust,which is mainly reflected in the relief of the beneficiary’s compensation claim right and property compensation right after the termination of the trust.Finally,the trust rescission right should set the period of rescission.The legal nature and exercise procedure of the right of rescission of trust.This paper holds that the right of rescission of trust is a forming right.Therefore,the way of exercising the right of rescission of trust depends on the nature of its forming right.This paper constructs two kinds of exercise procedures: first,unilateral notice of intention.The trust can be discharged when the notice reaches the person exercising the relative right.However,since the rescission of the trust has a huge impact on the trust,the counterpart should be granted the right to exercise the objection.If the counterpart of the rescission of the trust has objection to the rescission notice,he can request the court or arbitration institution to confirm the rescission of the trust.Secondly,the obligee may dissolve the trust directly through the mode of litigation dissolution.