Research On The Legal System Of Testamentary Trust Trustee In China

Testamentary trust,which is a trust established in the form of a will.Article 1,133 of Chinese "Civil Code" stipulates that "a natural person can establish testamentary trust according to law",and the relatively unfamiliar concept of "testamentary trust" has entered public vision through the Basic Law.Different from the usual forms of civil trusts,testamentary trusts combine the two elements of "will" and "trust",which must comply with the provisions of the "Civil Code" and "Trust Law".Different from the single act of disposing of the decedent’s property in testamentary inheritance,testamentary trust provides a long-term mechanism for the testator to deal with the property behind him.The trustee will operate,manage and distribute the property behind him,which fully reflects the will freedom of the parties and takes into account both efficiency and property safety.Although China has stipulated testamentary trusts since the 2001 "Trust Law",the use of testamentary trusts in practice is relatively rare because the content of the provisions is too simple and the operability is not strong.In view of the crucial role that trustees play in the stable operation of trust system,this paper chooses trustees as the research object and contacts the shortcomings existing in practice.Including limited qualifications of trustees,weak operability of loyalty and care obligations,lack of supervision mechanism for trustees,and unreasonable remedial measures in cases where trustees have not accepted designation,etc.Stones from other hills may serve to polish the jade of this one.The detailed system regulations in the Anglo-American law and the complete system design in Japan,South Korea and other places have a high reference value for the improvement of testamentary trusts in China.For this reason,while being aware of shortcomings,it is necessary to study and learn from the mature trust systems outside the region,including the system design ideas,explore system concepts.On this basis,appropriately expand the scope of trustees,clarify the trustee’s duty of loyalty and care,introduce the fourth party in the trust relationship-when the supervisor and trustee are vacant,adopt the model of applying to the court to appoint a trustee,etc.,so as to complete testamentary trust system.Promoting the realistic testamentary trust system to be widely applied in China.