研究课题设计提纲

 

考生姓名：吕富强

所在单位：厦门国际信托投资有限公司

报考单位：厦门大学法律系

报考专业：民商法学

考生编号： 103845111041015

联系电话： 13850087037

E-Mail ： lfqiang@sohu.com

 

Project Statement

 

Trust without equity-in the business trust sphere

 

I'm an employee and a legal counsel of Xiamen International Trust & Investment Corp. Ltd., and my major job is to give legal opinion regarding to securities law and trust law issues, as a result I'm quite interested in these law sections. During 1994 to 2001, I had spent most of my spare time in studying the securities disclosure of the capital market, and had myself solely finished a monograph- legal aspects of securities disclosure (about 370000 Chinese letters) which was published by The People's Court Press in 2000 (hereafter referred as “the Monograph”) . The Monograph is the first one on this topic in china and I'm quite proud of it. Afterwards I had made an ambition to write a book on some subjects of trust law, and indeed I've been making great effort in preparation of relevant materials, and these years I have collected over thousands piece of essays on trust law.

It's almost impossible for me in a short period to write an all-around comprehensive monograph which covers the various subjects of trust law for full use of these materials on hand. So I'd like to write one or two subjects of trust law as under such topics as “Business Trust Law” or “The Third Party's Protection Under the Trust Institution”, etc. Of which the first one I'd like to deal with at first.

It is generally held that trusts are incompatible with the basic assumptions of civil law systems, this viewpoint is not only firmly adhered to by many famous common law scholars, but also shared by many civil law commentators, even by many legal practitioners in China . The England medieval law scholar F. W. Maitland 1 once said, “ If we were asked what is the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence I cannot think that we should have any better answer to give than this, namely, the development from century to century of the trust idea.” 2 The trust “ perhaps forms the most distinctive achievement of English lawyers. It seems to us almost essential to civilization and yet there is nothing quite like it in foreign law. ” 3Meanwhile the renowned French lawyer and jurist Pierre LEPAULLE observed, “Thus from settlement of the greatest of wars down to the simplest inheritance on death, from the most audacious Wall Street scheme down to the protection of grand-children, the trust can see marching before it the motley procession of the whole of human endeavour: dreams of peace, commercial imperialism, attempts to strangle competition or to reach paradise, hatred or philanthropy, love of one's family or the desire to strip it of everything after one's death, all those in the procession being dressed either in robes or in rags, and either crowned with a halo or walking with a grin. The trust is the guardian angel of the Anglo-Saxon, accompanying him everywhere, impassively, from the cradle to the grave” 4. These remarks always puzzle me and arouse my meditation: Is the trust, as has been alleged, a purely and peculiarly common law device owing nothing to civil law? If it is a purely and peculiarly common law device, then why it is so prevailing on a worldwide range irrespective of the legal systems? Is it possible to have the trust without equity? In the forthcoming treatise “Trust without equity-the business trust sphere”, I will do some research work in a great effort to give some answers to these questions.

In my treatise, I will deal with the question mentioned above in three sections, which goes as following:

In Section I, I will begin with the proposed topic titled with “Trust and Legal Systems” which includes such sub-titles as “the origin of the trusts”, “the common law and civil law trusts” and “the nexus between trust and legal system”. I will try to make a full scrutinization on these subjects and take advantages of the recent research achievements. Judging from a historical perspective, we can conclude that the Anglo-American trust probably take its root from the Roman Law, the predecessor of the modern trusts-“Use” is quite similar to some institutions of Roman Law such as Fideicommissum and Peculium castrense , many of the English Chancellors (as the creators of trust ) have civil law background; Trusts are evolved in a civil law and common law jurisdiction. Though they are well developed in pure common law countries, they can also be developed naturally in “mixed legal systems states” such as Scotland, Quebec and South Africa 5(South Africa belongs mainly to civil law 6); The pure civil law countries can also through legislation “introduce” trust rather than develop naturally; So there is no instinct and destined connection between trust and legal system, and in the course of development of trust, the civil law and common law are interactional. And it comes to the conclusion that historical connections can be drawn between the English trust and the Continental legal tradition. The common features and the common sources evident on both sides of the Channel mean that no wall of incomprehension separated the English trust from analogous institutions on the Continent.

The Section II will go on under the title “The Trust Governance Structure-Trust as an Organization”. In this part, I will give a brief introduction of the one-century perennial debate over whether trust law is more closely related to contract law or property law 7. In the U. S. , the trust law is most frequently classified as a species of property law. The 1959 Restatement (Second) of Trusts, for example, characterizes the “creation of a trust . . . as a conveyance of the beneficial interest in the trust property rather than as a contract ”. 8 Some scholars even contend that the law of trusts “is at the heart of the common law of property” 9. The contractarian proponents hold that a trust embodies a deal between settlor and trustee about how the trustee will manage and apply the trust assets for the beneficiaries. Because virtually all trust law consists of default rules that the parties can alter, the parties to a particular trust in effect choose to accept those default rules that they do not oust. And contend that greater sensitivity to the contractarian dimension of the trust will appropriately diminish the harshness of trust fiduciary law in cases in which conflicts of interest are embedded in the terms or the logic of the trust deal. 10 I'm quite appreciated with the novel opinion that the law of trusts is a hybrid of property law and contract law, and hence that trust law would be both properly classified and best understood as organizational law. Especially in the business (commercial) trust sphere, the trust bear even greater resemblances to corporations. Unlike a gratuitous trust, in which the party transferring assets to the trust (the “settlor”) receives no compensation for the conveyance, the settlor in a commercial trust – typically a corporation or financial institution – always receives payment for the assets conveyed to the trust. The settlor in a commercial trust also will retain a residual interest, entitling the settlor to retain any trust assets remaining once the business transaction is concluded. (In contrast, a settlor in a gratuitous trust may or may not retain a residual interest.) Commercial trusts are therefore bargained-for exchanges where resort to the trust form serves a commercial advantage. The parties in a business trust are protected by the limited liability doctrine. An elaborate depiction of the business trust governance structure, and similarities and distinctions between a business trust and corporation will be rendered in my treatise.

Based upon the assumptions of Part I and Part II, Part III will make some analysis on the nature and attributes of business trust, and give a construction for the reason why the business trusts are so favored on a world-wide range whether in common law or civil law jurisdiction, then I will draw the conclusion that trust as an exotic institution in China is mainly utilized in the business field rather than the family inherited transfer, and the business trust is a systematic complement to our legal system and should be fairly cherished.

Objective and significance As it has been denoted above, the objective of this research is to write a doctorate treatise concerning the origin of the trusts, making clear the nexus between trust and legal system on which a bias viewpoint has been maintained for many decades, and suggesting that business trust in China be properly dealt with by the legislative bodies and legal practitioners. By studying the evolvement of trust in common law and civil law jurisdictions, especially the reason for the exuberant development of business trust, this research presents two aspects of significance. The first is to promote the proper understanding of the relationship between trust and legal system in China . Many Chinese scholars and law practitioners generally think that trusts are unharmonious with the fundamentals of civil law system, this bias of viewpoint is detrimental to legislature and judicature. The second aspect is to appeal the legislative body to lay down some by-laws of the Trust Act (such as the trust registration regulations) in order to promote the development of business trusts.

Methodology In this treatise, I will try to use three methodologies, namely 1) the historical perspective approach: I plan to study the institution of trust in a historical perspective, from its origin evolving into the modern business trust; 2) the comparative analysis methodology: making a comprehensive comparison between the common law trust and civil law trust, the traditional trust and the business trust ; and 3) the economics analysis approach: using this approach to illustrate why the business trusts are so widely adopted.

Duration Being a partial time student without full time staying in the college campus, I will spend two and half years to finish the major part of the proposed project. The law of trusts bears some attributes with great complexity, it strides property law and contract law in common law sense, and law in rem and law in personam in civil law sense. Especially for a learner bred indigenously in a civil law country, it is a difficult task in grasping the inmost marrow of trust law. Furthermore, I acknowledge that my knowledge of private law is quite superficial, though I have made a sufficient preparation in background information during the past years, so I have to work more diligent than ever. Nevertheless I'm quite confident that the doctorate treatise will be finished in time after I had passed this entrance examination.

English Proficiency I had been an English language student for four years in the University of Jiangxi and conferred the degree of Literarum Baccalaureus on English Language & Literature in 1989. Since then I have been persisting in practising my English competence. Particularly since I graduated from University of Xiamen in 1994 when I was conferred the degree of LLM, I have been learning law in English of interested aspects. The Monograph is a phasic achievement of several years dogged research most part of which is built on the first hand English law literature. Having undergone training for so many years I think I'm quite proficient in using the English language tool to further my study in English law.

  Bibliograph

1•  C.H. Van Rhee, Trusts, Trust-like Concepts and Ius Commune . European Review of Private Law 3: 453-462, 2000.

2•  H.L.E. Verhagen, Trusts in the Civil Law: Making Use of the Experience of ‘Mixed' Jurisdictions, European Review of Private Law 3: 477-498, 2000.

3•  Michael Milo and Jan Smits, Trusts in Mixed Legal Systems: A Challenge to Comparative Trust Law, European Review of Private Law 3: 421-426, 2000. .

4•  R Fletcher , Trust-On the Horns of a Dilemma, Business Law Review August/September 2000 .

5•  Peter Joseph Loughlin, The Domestication of the Trust Bridging the Gap Between Common Law and Civil Law ( 2003), on the website: http://www.financialcertified.com/newarticle2.html

6•  Francesco Nanetti and Fantozzi , Italy : The transfer of a right in asset immovable to a trustee is not in contrast with the Italian civil law. INTERTAX, Volume 28, Issue 12 # Kluwer Law International 2000.

7•  Paul Matthews, Fuducia and the hague Trusts Convention: the new Luxembourg Law.

8•  Manfred J. Klein and Rechtsanwalt, Reception of the Trust Institute under German Tax Law? INTERTAX, Volume 28, Issue 8-9 # Kluwer Law International 2000

9•  Kenneth G. C. Reid, Patrimony Not Equity: the trust in Scotland , European Review of Private Law 3: 427-437, 2000 .

10•  M.J. De Waal, The Uniformity of Ownership, Numerus Clausus and the Reception of the Trust Into South African Law, European Review of Private Law 3: 439-452, 2000.

11•  Daniel Dea?k, Legal and Tax Considerations of Fiduciary Business in Hungary , INTERTAX, Volume 27, Issue 3 # Kluwer Law International 1999

12•  Maurizio Lupio, Trusts: a comparative study. Cambridge University Press,2000.

13•  Maurizio Lupio, The civil Law Trust, Vanderbilt Journal of Transnational Law , October, 1999 .

14•  D.J. Hayton, S.C.J.J. Kortmann, H.L.E. Verhagen, Principles of European Trust Law, European Review of Private Law 3: 533-542, 2000 .

15•  Lusina Ho, The Reception of Trust in Asia : Emerging Asian Principles of Trust? Singapore Journal of Legal Studies [2004] 287–304.

16•  Robert H. Sitkoff, An Agency Costs Theory of Trust Law , CORNELL LAW REVIEW , Vol. 89

17•  Gerwyn Ll H Griffiths, The Guardian Angel Spread Its Wings? Trusts and What They Bring to Legal Systems , Issue 6 (July) Law and Practice- The Journal of the Malta Chamber of Advocates(2003).

18•  Ugo Mattei , Basic Issues of Private Law Codification in Europe : Trust , Global Jurist Frontiers, Volume 1 , Issue 1 2001

19•  Steven L. Schwarcz , Commercial Trusts as Business Organizations: An Invitation to Comparatists , Duke J. of Comp. & Int'l L ., Summer 2003, Volume 13, Number 3

20•  Steven L. Schwarcz , Commercial Trusts as Business Organizations: Unraveling the Mystery , Business Lawyer, Vol. 58, February 2003

21•  Robert S Stevens , Limited Liability in Business Trusts , 7 Cornell L. Q. 116 (1921-1922)

22•  Dr. Roberto Molina Pasquel, Mexican Fideicomiso: The Reception, Evolution and Present Status of the Common Law Trust in a Civil Law Country , 8 Colum. J. Transnat'l L. 54 (1969).

23•  Joshua Getzler , Legislative incursions into modern trusts doctrine in England : The Trustee Act 2000 and the Contracts (Rights of Third Parties) Act 1999 , Global Jurist Topics Volume 2 , Issue 1 2002.

24•  Horace E. Whiteside, Restrictions on the Duration of Business Trusts , 9 Cornell L. Q. (1923-1924)

25•  Tamar Frankel, The Delaware Business Trust Act Failure as the New Corporate Law , CARDOZO LAW REVIEW, Vol. 23:1, 2001.

26•  Audrey S. Benguira, The Canadian Constructive Trust and the French Negotiorum Gestio: Two Institutions Serving one Same Legal Concept ? Global Jurist Advances Volume 3 , Issue 3 2003

27•  Henry Hansmann & Reinier Kraakman, The Essential Role of Organizational Law , from the website: http://www.law.harvard.edu/programs/olin_center/

28•  David A. Steele, Business Trusts- Some Key Issues for the Trust and Estate Lawyers, Torys(New York, Toronto), Second Annual Estates and Trusts Forum, November 24th and 25th, 1999

29•  Robert H. Sitkoff, Trust Law, Corporate Law, and Capital Market Efficiency , University of Michigan Law School, The John M. Olin Center for Law & Economics, Working Paper Series, Year 2003 Paper 20.

30•  John H. Langbein, The Contractarian Basis of the Law of Trusts , 105 Yale L. J. 625 (1995).

31•  John H. Langbein, The secret life of the Trust: The Trust as an instrument of Commerce , 107 Yale L. J. 165 (1997).

32•  Government of Alberta , Income Trusts: Governance and Legal Status, A Discussion Paper, July 2004.

33•  Thomas W. Merrill and Henry E. Smith, The Property/Contract Interface, John M. Olin Center for Law & Economics, The University of Michigan Law School, The Law and Economics Workshop, March 15, 2001, available at http://141.211.44.51/centersandprograms/olin/workshops.htm

34•  The Treatment of Trusts Under the OECD Model Convention

BY JOHN F. AVERY JONES (United Kingdom), HENRI-ROBERT DEPRET and MICHELINE VAN DE WIELE (Belgium), MAARTEN J. ELLIS (Netherlands), PIERRE FONTANEAU and PIERRE-MARIE FONTANEAU (France), RAOUL LENZ (Switzerland), DONALD C. ORROCK (Australia), SIDNEY I. ROBERTS and SANFORD H. GOLDBERG (United States), JUERGEN KILLIUS (Germany), VICTOR UCKMAR and GUGLIELMO MAISTO (Italy), and DAVID A. WARD (Canada).

 

 

 

 

 

1Frederick W. Maitland (1850-1906) was the Downing Professor of the Laws of England at the University of Cambridge and an unparalleled scholar of medieval law.

2The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols.

3Frederick W. Maitland , Equity: A Course of Lectures (2nd revsd. ed by John Brunyate) Cambridge, 1936.p.129

4 Traité théorique et pratique des trusts an droit interne, en droit fiscal et en droit international, Paris 1932, p.113.

5Gerwyn Ll H Griffiths, THE GUARDIAN ANGEL SPREADS ITS WINGS? TRUSTS AND WHAT THEY BRING TO LEGAL SYSTEMS, Issue 6 (July) Law and Practice- The Journal of the Malta Chamber of Advocates(2003).

6M.J. DE WAAL, The Uniformity of Ownership, Numerus Clausus and the Reception of the Trust Into South African Law, European Review of Private Law 3: 439, 2000.

7The debate, which traces its roots to the exchanges in the early 1900s between Frederic Maitland (who took a contractarian perspective) and Austin Scott (who took a proprietary perspective), has recently been reenergized and injected with greater economic sophistication by John Langbein(who wrote the important article The Contractarian Basis of the Law of Trusts , 105 Yale L. J. 625 (1995)) and by Henry Hansmann and Ugo Mattei(who wrote treatises Trust Law in the United States. A Basic Study of Its Special Contribution , 46 Am. J. Comp. L. 133, 133 (1998) and The Functions of Trust Law: A Comparative Legal and Economic Analysis , 73 N.Y.U. L. Rev. 434, 473-78 (1998)).

8Restatement (Second) of Trusts § 197 cmt. b, and the Restatement (Third) of Trusts retains the view of the Second Restatement that the stake of the beneficiaries in the trust is a property interest(See Restatement (Third) of Trusts § 5(i) & cmt. i (T.D. No. 1, approved 1996) ).

9Robert Pearce & John Stevens, The Law of Trusts and Equitable Obligations v (3d ed. 2002).

10See John H. Langbein, The Contractarian Basis of the Law of Trusts , 105 Yale L. J. 625 (1995).

 

 

 

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