Dilemma In The Application Of My Country's Foreign-related Trust Conflict Regulations And Its Solutio

Since its promulgation in 2011,Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China(hereinafter referred to as the "Law for Foreign-related Civil Relationstion of Laws")has been an important legal basis for resolving disputes in the field of foreign-related civil and commercial matters in China.The Law consists of eight chapters and fifty-two articles,most of which have been widely used since its enactment.However,the author finds that article 17,which regulates the norms of conflicts concerning foreign-related trust relationships,has not been used in China’s judicial adjudication since its birth in 2011.The author is puzzled about this phenomenon and tries to explore whether there is really no applicable space in the judicial practice of China in article 17 of the Law for Foreign-related Civil Relationstion of Laws.After that,the author found some cases related to Article 17 of The Law on the Application of Law through case retrieval by changing keywords.Without giving rise to reflection,there is clearly a realistic need for possible application.Why is Article 17 of the Law on Application of Law not applied in judicial practice? And is the provision still necessary since it has not been applied for a long time? If it is necessary for the foreign trust conflict norm to exist,how should we play its role?In the first section of the first chapter,the author introduces briefly the background of the birth of article 17 of the Law on the Application of Law.The second section,mainly through empirical research,searches the Internet resources with "Article 17 of the Law on the Application of Law" as the key word,and finds the judicial status quo that this article has not been applied.Then,the method of adding keywords "foreign affairs" and "trust" was used to search.Through studying and comparing the search results,26 cases that should have been subject to Article17 of the Law on the Use of Law were selected as samples to classify and summarize,providing case materials and targets for the subsequent analysis.The second section analyzes the two viewpoints of "reservation theory" and "abrogation theory" on article 17 of the Law for Foreign-related Civil Relationstion of Law,and finds the contradiction.The second chapter tries to solve the first problem,that is,why the article 17 of the Law for Foreign-related Civil Relationstion of Laws has not been applied in judicial practice.Through analysis,it is found that there are three main causes for this phenomenon.The first reason is that the traditional case handling path dependence has brought obstacles to the handling of foreign trust relationship.This is mainly reflected in the adherence to the "three elements" standard of foreign-related standards,which is inconsistent with the trust relationship.The classification of causes of action is rigid,which makes it difficult to identify trust disputes.The application of law often depends on the application of law of the main problem.The second point mainly lies in the defects of Article 17 of the Law on the Application of Laws.Compared with the division system widely adopted in the internationally accepted norms of fiduciary conflict represented by the Hague Convention on the Application of Laws on Trusts and Their Recognition,China adopts the unitary system in the norms of fiduciary conflict concerning foreign affairs.However,unitary system is difficult to achieve justice in substantive law,so for the consideration of substantive justice,this provision has not been applied.In addition,there are some defects in the existing provisions,such as "place of trust property" and "place of trust act".Moreover,from the perspective of literal interpretation,article 17 only adjusts the trust relationship by agreement,while there is no room for adjustment for the trust established by unilateral expression of will and other wills,so the adjustment scope is really single.The third section focuses on the conflict between the property rights of trusts and the legal traditions of "one thing and one right" in the civil law system in the process of law transplantation,as well as the conflicts between some trust types and the legislation of China’s entities.The third chapter of this paper discusses the second question,that is,whether there is a need for reservation of Article 17 of the Law for Foreign-related Civil Relationstion of Laws.By demonstrating the value of retaining article 17 of the Law of application of Law and the negative impact of its abolition,the author holds that it is necessary to retain this article First of all,the reasonableness of this provision lies in the fact that the resolution of foreign-related trust disputes requires conflict law in the field of trust relations,while the norms of foreign-related trust conflict are different from the traditional legal concepts of real right,contractual rights and civil subjects,so there is room for application of this provision.Secondly,combined with the cases,it can be seen that if Article 17 is abolished,it will indeed have an adverse impact on China’s judicial practice.It may affect the determination of whether the legal relationship is still valid and will have an impact on the parties to the legal relationship.The fourth chapter of this paper is mainly based on the analysis of the second chapter of the "Law for Foreign-related Civil Relationstion of Laws" article 17 is not applied to the reasons,the judicial practice,legislation and other aspects of the improvement.The first section points out that in judicial practice we should get rid of the dependence of traditional case handling.One is can’t just rely on the legal relationship of subject and object,the fact whether such factors as foreign to decide whether cases concerning foreign affairs or traditional standards,but to be flexible applicable rules,on the basis of the characteristics of the subject,object,the trust relationship between facts for targeted improvement,combined with the actual control whether foreign-related,facts such as causal relationship before and after the flexible standard.Second,it is necessary to achieve professional trial of trust-type cases,improve the efficiency of case handling,and ensure the fairness of case adjudication.Finally,in terms of the application of conflict law,the "preliminary issues" and "main issues" of cases should be distinguished and the law should be applied separately.The second section is the suggestion to improve the norms of foreign trust relationship conflict.It should absorb and transform the internationally accepted classification and division law,distinguish the recognition,validity,interpretation,management and change of legal relations,and adopt different dispute settlement rules.To clarify the meaning of the link points in the existing conflict rules and improve the accuracy of law application by issuing judicial interpretation.Finally,the adjustment scope of the existing rules should be expanded to include the trust relationship established by unilateral expression of will,such as testamentary trust.The third section is the suggestion to ease the contradiction in the process of law transplantation.In order to expand and perfect the trust substantive law and conflict law of our country,the trust substantive law should be added to the trust substantive law in accordance with China’s national conditions.