Research On The Construction Of Charitable Declaration Of Trust

Charitable declaration of trust is a declaration of trust established for the charitable purposes.Its essence is a charitable trust with charitable purposes as the core.Its form is a declaration of trust established by the way that the settlor unilaterally declares herself as the trustee.Compared with the current charitable system in China,charitable declaration of trust has the institutional advantages of simple establishment,reducing operating costs,better realizing the wishes of donors,facilitating the establishment of special forms of property,avoiding trust risks and so on.Under the background that China’s philanthropy is underdeveloped and countries greatly encourage and support the development of philanthropy,charitable declaration of trust can be used as a new form of charitable trust and a way to engage in charity.Although China’s law has not officially recognized the charitable declaration of trust,it can be recognized as a special form of trust in essence,and there have been relevant examples of charitable declaration of trust in China’s practice,so it is necessary to recognize and construct the charitable declaration of trust by legislation.At the same time,charitable declaration of trust may also have potential problems such as the slackness of trustee’s responsibility and abuse of charitable declaration of trust,which lead to the lack of guarantee of charitable purposes.Therefore,it is necessary to study how to regulate charitable declaration of trust on the basis of the existing charity law and trust law.The research on charitable declaration of trust is conducive to promote the theoretical research on declaration of trust,charitable trust and general trust rules,promote the practical exploration and development of charitable declaration of trust and charitable trust,and promote the development of philanthropy in China.This paper mainly discusses the establishment and specific construction of charitable declaration of trust in China from three parts:The first chapter mainly analyzes the necessity of constructing charitable declaration of trust in China.This chapter first examines the current charitable system in China,mainly including charitable donation system,charitable legal person system and charitable trust system.As the main way of engaging in charity,charitable donation system and charitable legal person system have developed for more than 20 years,and charitable trust system has developed for six years,but the development of philanthropy in China is still backward,indicating that due to their respective limitations,there is a lack of development power.Secondly,after comparing with the current charitable system in China,this paper summarizes the institutional advantages of charitable declaration trust,such as simple establishment,reducing operating costs,better realizing the wishes of donors,facilitating the establishment of special forms of property,avoiding trust risks and so on.Finally,it points out that China has the practical needs of constructing the charitable declaration of trust.China has a huge social demand for charity.In the case of insufficient development power of the current charity system,it is necessary to explore new forms or mechanisms to inject vitality into the development of charity and open up the development situation of charity.Although China’s legislation has not officially recognized charitable declaration of trust,relevant examples of charitable declaration of trust have appeared in practice.If it is not recognized and standardized in law,it is not conducive to encouraging the development of charitable declaration of trust,nor conducive to regulating the charitable declaration of trust that has been put into practice and protecting the interests of relevant obligees.Therefore,it is necessary for China to build a charitable declaration of trust.The second chapter discusses the theoretical support basis of constructing charitable declaration of trust in China.The first section introduces the legislation of recognizing declaration of trust under the two legal systems.The representative countries of the common law system are Britain and the United States;The representative countries and regions under the civil law system include Japan and Chinese Taiwan,which can provide reference experience for the construction of declaration of trust in China;The second section analyzes the legal basis that declaration of trust can be recognized as trust.Firstly,it examines whether the declaration of trust conforms to the definition of trust in China’s trust law.The expression and definition of trust in China’s trust law is controversial in academic circles.From the perspective of comparative law,the definition of trust in various countries(regions) believes that the essence of trust is a fiduciary relationship.The focus of trust lies in the fiduciary obligation of the trustee to the beneficiary.It should deny the concurrent appointment of the sole trustee and the sole beneficiary,and there are no rules and statements prohibiting the trustor from concurrently serving as the trustee.Secondly,it examines whether the transfer of trust property is an important element of the establishment of trust.Through the analysis of comparative law,both legal systems recognize that the transfer of trust property is a condition that must be met by trust.However,the "transfer" can be flexibly understood.For example,the two legal systems have made special provisions for declaration trust.Declaration of trust can be understood as the original acquisition of trust property by the trustee,which is not the actual transfer of property possession under normal trust,but the conceptual transfer through declaration,which also meets the requirements of trust property transfer.Therefore,theoretically,declaration of trust essentially constitutes a trust and is a special form of trust.The third chapter makes a conception of the system construction of charitable declaration of trust in view of the possible problems of charitable declaration of trust.The first section aims at the problem that charitable declaration of trust can not apply to the establishment rules of ordinary charitable trust,and designs the establishment rules of charitable declaration of trust mainly from three aspects: the establishment subject,the establishment form and the trustor’s rights;In the second section,in order to ensure the safety of charitable property and the realization of charitable purposes,we should pay attention to strengthening the standardization and supervision of trustees,ensuring the independence and safety of trust property and standardizing the value-added and value preservation behavior of trustees,and conceive the standardization of relevant issues.First of all,strengthen the standardization and supervision of the trustee,such as strengthening the trustee’s obligation of information disclosure,prohibiting the trustee’s right to receive remuneration,limiting the trustee’s right to claim,limiting the prior exemption of the trustee’s responsibility,and forcing the establishment of the trust supervisor system.Secondly,in order to ensure the independence and safety of trust property,we should strengthen the trustee’s separate management obligations.Finally,in order to regulate the trustee’s behavior of maintaining and increasing value,we should pay attention to improving the trustee’s obligation of prudent investment;The third section conceives the mechanism to prevent the abuse of charitable declaration trust,such as prohibiting the establishment of revocable charitable declaration trust,and if the settlor’s establishment of trust damages the interests of creditors,creditors can apply to the court to revoke the trust;The fourth section designs the tax preference system of charitable declaration of trust.Based on the principle of substantive taxation and the particularity of charitable declaration of trust,it mainly conceives the tax problems existing in the establishment stage,survival stage and beneficiary end of charitable declaration of trust.In a word,under the background of underdeveloped philanthropy in China and countries greatly encourage and support the development of philanthropy,charitable declaration of trust can be used as a new form of charitable trust and a way to engage in philanthropy.Moreover,when relevant examples of charitable declaration of trust have appeared in practice,the charitable declaration of trust has the necessity of legislative recognition and regulation as soon as possible.At the same time,the construction of charitable declaration of trust system is not a process from scratch,but standardized and strengthened on the basis of charity law and trust law.