Research On The Institution Construction Of The Current Distribution Of Capital Trust In China

Since the formal implementation of the Guiding Opinions on Regulating the Asset Management Business of Financial Institutions,in order to solve the potential compliance risks in the trust plans of assembled funds,trust companies have successively terminated the trust plans under their management by means of current distribution,which has also led to an increase in the number of cases related to current distribution in recent years.The current distribution is a property distribution mode after the termination of the trust that has been reached by the parties through continuous exploration in financial practice.At present,there are loopholes in the institution of the current distribution,and the judicial opinions are not uniform.This paper combs out the problems faced by the current distribution,and provides suggestions for the construction of norms and judicial institutions related to the current distribution by establishing models and conducting theoretical analysis.This paper is divided into four chapters.The first chapter examines the current norms and practical application of the current distribution in China.Then the first chapter summarizes the problems of the rights and obligations,and concrete provisions of practical operation of current distribution in the system level.At the judicial level,there are problems of incomplete argumentation of the effectiveness of provisions and inconsistent application of laws.In addition,the first chapter also constructs the basic models of four types of trust plan,and puts forward the problems faced by each model in the current distribution,providing an intuitive analysis basis for this paper.The second chapter starts from the perspective of the four elements of trust and defines the concept of current distribution.Then this chapter discusses the close relationship between the current distribution and trust liquidation,and provides reference for the design of the current distribution institution by comparing the trust liquidation rules and theories abroad.This chapter also proves the legitimacy of the current distribution,and confirms that the possibility of moral hazard is low,which is of research significance.This chapter discusses that the current distribution is essentially an act of transferring the realization risk of trust property,which has the institutional value of reducing agency costs and improving transaction efficiency.In addition,the second chapter puts forward three groups of parties in the current distribution and three groups of legal relationships derived from the perspective of the person who has the right,providing ideas and perspectives for the following theoretical analysis.The third chapter takes three groups of legal relations in the current distribution as clues,and discusses the problems raised in the first chapter from the perspective of academic theory.First of all,based on the relationship between the person who has the right and the trustee,this chapter analyzes the specific rights and obligations of the trustee in the current distribution,and defines the point for the trustee to release the responsibility.Secondly,this chapter proposes to explain the internal relationship between the people who have the rights through the theory of joint and several claims,but after finding the existence of major obstacles,it introduces the system of beneficiaries’ meeting to optimize it,thus solving the specific operation problem of the second distribution of the remaining trust property among the people who have the rights.Finally,this chapter clarifies the trust legal relationship attribute of the fund trust,and puts forward that the right owner establishes a direct legal relationship with a third party because of obtaining the remaining trust property,thus obtaining the subject qualification.The fourth chapter combines the institutional value and theoretical analysis of the previous chapter,and constructs corresponding institutional rules from the perspective of norms and justice to respond to the problems raised in the first chapter.With regard to the normative institution,this chapter takes the institutional value of the current distribution as its purpose,clarifies the institutional design orientation of focusing on maintaining the transaction efficiency without over-protecting the person who has the right,details the main obligation,collateral obligation and fiduciary obligation of the trustee to transfer property in the current distribution,and clarifies that the trustee’s responsibility will be relieved when the person who has the right does not raise an objection at the expiration of the objection period.It emphasizes that the person who has the right needs to enter the judicial relief channel through the pre-procedure of raising objections,and constructs the specific operation mode of the internal distribution of the person who has the right through the beneficiaries’ meeting.For the judicial system,this chapter clarifies that the court should unify the application of the law when hearing the case of the current distribution of funds trust,affirm the effectiveness of the current distribution clause,clarify the property transfer behavior attribute of the current distribution,and then determine the subjective suitability of the person who has the right when claiming the right to a third person.