Research On The Institutional Dilemma And Resolution Of Testamentary Trust In China

Article 1133 of the Civil Code 2020 expressly stipulates that testamentary trust system has become the legal model of testamentary succession.As a guiding provision,it provides a legal basis for the practice of testamentary trust.Compared with the simple trust system and the previous traditional testamentary succession model,testamentary trust system connects the legal parties of the settlor(the testator),trustee and beneficiary with its more flexible legal framework.Testamentary trust takes the better realization of the will autonomy of the settlor,the better standardization of the liability of the trustee and the better protection of the interests of the beneficiary as the main legal core.It plays a role in giving full play to the function of civil trust,conforming to the civil and commercial style,and promoting the coexistence of system refinement and coordination.Based on the structure of testamentary trust system itself and drawing on the beneficial experience of common law system and civil law system,this paper aims to clarify the rights and obligations of settlor,trustee and beneficiary from three aspects: the establishment,effectiveness and relief of testamentary trust.At the same time,it makes up for the contradiction of the establishment rules,the contradiction of the effective link and the deficiency of the relief norms.Based on the expanded interpretation of the civil code and the revision and improvement of the trust law,this paper explores the solutions to the establishment system,effective mechanism and relief ways of testamentary trust,so as to provide institutional guarantee for the legal practice of testamentary trust.The first part is the goal analysis,which deeply analyzes the value goal of testamentary trust system.The testamentary trust system was renamed under the background of the promulgation of the civil code.Firstly,it reflects the civil trust function of testamentary trust in interest balance,meaning protection and bankruptcy isolation.Secondly,as a system connecting civil and commercial rules,it has the value of system design in line with the style of civil law;Thirdly,due to the lack of detailed provisions in the succession code,promoting the expansion and interpretation of the rules of the civil code and the amendment process of the trust law of the People’s Republic of China(hereinafter referred to as the Trust Law)is another value of the testamentary trust system;Finally,how to standardize the coordinated coexistence mode of the inheritance system of the civil code and the trust system of the trust law is another necessary value for the improvement of the testamentary trust system.This part discusses the contents of three value objectives in detail,which provides value support for the full text to study the countermeasures to solve the dilemma of testamentary trust system.The second part raises questions and explores the institutional dilemma of testamentary trust system.From the perspective of the establishment,effectiveness and relief of testamentary trust system,this paper discusses the conflict of laws and regulations,the unclear restriction of trust intention and the defects of trustee selection rules;The qualification of the trustee’s rights,the dispute over the nature of the beneficiary’s rights and the barrier of registration rules in the effective link;In the relief link,the protection of the interests of beneficiaries,the relief of creditors’ rights and the lack of supervisor system.The third part studies the practical experience of foreign testamentary trust system.This part also explores the legal systems of Britain,the United States,Japan and Chinese Taiwan from the perspective of the establishment,effectiveness and relief of testamentary trust,and provides specific experience enlightenment for China’s testamentary trust system from the difference between civil law system and common law system.The fourth part is to solve the problem and find a solution to the dilemma of testamentary trust in China.This part corresponds to the realistic dilemma of the second part.From the perspective of the establishment of testamentary trust,it puts forward the unified amendment of the establishment elements,the legal regulation of the establishment intention and the clear rules of trustee selection;From the perspective of the effectiveness of testamentary trust,this paper puts forward the interpretation of the elements of ownership transfer,the recognition of the theory of real right of beneficial right and the coordination of registration system;From the perspective of testamentary trust relief,this paper puts forward the Countermeasures of making full use of the human-machine ability of continuous beneficiaries,paying attention to the protection of heritage creditors and introducing supervisor supervision.The main foothold of resolving the dilemma is the interpretation of the Civil Code and the amendment of the Trust Law.The way of interpreting the Civil Code is adopted for the legal regulation of the establishment intention,the necessity of ownership transfer,the recognition of the real right of the beneficial right,the realization of the continuous function of the beneficiary and the protection of creditors;For the conflict of laws and regulations,the improvement of trustee selection rules,the modification of registration system and the design of supervisor system,the idea of amending the Trust Law is adopted.