Research On The Applicable Laws Of Foreign-related Family Trusts In My Countr

In recent years,with the rapid development of China’s economy,there are more and more high net worth persons,and their demand for family wealth inheritance and enterprise risk isolation are also increasing,but our Trust Law can not meet their needs.Therefore,more and more high net worth people set up their family trust in other jurisdictions where the trust system is more mature and perfect,or set up a trust in our country but choose the law of other jurisdictions as the applicable law.As a result,the family trust with "foreign-related" factors,that is,"foreign-related family trust",is facing legal conflicts,and it is necessary to determine the rules of choice of law.The conflict law of trust stipulated in Article 17 of the Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China in order to resolve the legal conflict of trust,which have not been in line with the development of the international application of trust law,but new connecting points have been adopted.However,in our country,the expression of the connecting point of the conflict law of trust is not clear enough,and the identification standard of trust is not stipulated,and the definitions of trust are varing from different countries,and the legal conflicts of family trust often involve multiple civil relations and are more complicated.Therefore,the conflict law of trust in our country can not meet the needs of foreign-related family trust,and the court should lack legal basis and judicial experience to deal with the specific problems in foreign-related family trust cases.The judge’s discretion in hearing cases is too large,resulting in errors in the application of the law of family trust.By using empirical analysis to sort out the cases of foreign-related family trust in China,it is found that the courts of our country have not applied conflict law of trust and have not choosen trust substantive law to adjust trust legal relations,but identified the case as a whole as other legal relations,applying other conflict of laws to resolve legal conflicts,but the intentions of the trust settlors were not adjusted by the trust substantive law and not realized in the form of trust.This will not be conducive to the protection of the rights of the trust parties and the performance of their obligations.This paper examines the legislation and judicature of the application of the law of extraterritorial trust,taking the Convention On The Law Applicable To Trusts And On Their Recognition(hereinafter referred to as the Hague Trust Convention)as the research object,through normative analysis to study the characteristics and contents of the Hague Trust Convention,and with the help of case analysis to study the judicial practice of the States parties to the Hague Trust Convention.This paper puts forward the following suggestions on the legal application of foreign-related family trusts in China: first,the conflict law of trust should be divided into independent chapters,and the identification standard of trust should be improved so as to solve the mistake of recognizing the legal facts of family trust as other legal relations in the administration of justice.The second is to improve the expression of the standard connection point of trust conflict,and to increase the conditions of how to select the most suitable connection point in the case of multiple connection points;the third is to clearly define the scope of application and adjustment of the applicable law of trust;the fourth is to take the principle of segmentation and the principle of making the trusts as effective as possible as general principles for the application of foreign-related family trust law.