Keywords: trust theory of alienation / Trust nature / fiduciary duties
Summary: At present, China trust industry is facing an unprecedented crisis of confidence. Circles there, “Trust alienation theory” point of view. For the Analysis of the “trust theory of alienation” has the correct view, should recognize the essential characteristics of trust. And commissioned, the company compared to the essential characteristics of trust is reflected in three aspects: the transfer of assets, managed by others, fiduciary duty. With the essential characteristics of each Trust Analysis of that “trust theory of alienation,” the reason, we can see, “trust theory of alienation” is not necessarily correct. “Trust the theory of alienation” in the sense that remind us of the lack of equity in the context of the concept, the pursuit of an era of financial innovation, we must recognize the essential characteristics of trust.
we all know, trust is based on equity and developed a common law system, is the legal historian Maitland (Maitland) as the “common law the crown jewel.” [1] However, modern commercial society based on trust in the power and widely used in many civil law countries have introduced trust the legal system. For example, Japan in 1905 promulgated the “Secured Bonds Trust,” Trust concept was first used in secured bonds, then in 1922 promulgated the “Trust Law” and “Trust Business Law.” Taiwan, China is also January 26, 1996 announced the “Trust Law.” In 2001 China promulgated and implemented the “Republic of China Trust Law,” the official introduction of the trust our legal system. In recent years, the financial industry as one of the four ride on the momentum of the trust business, trust companies across the currency market to try the three major capital markets and industrial markets, the total size of the trust assets have climbed to two trillion yuan, [2] various Trust products and styles, innovation frequently: MBO from the real estate trust to trust, from trust to corporate foreign exchange investment trust shares, a risk-return characteristics of a different trust products has introduced. However, rapid development, because trust violations continue, from Kinghing case, Jilin Pan-Asian case, Qingtai trust case to a criminal case in Qinghai Trust, trust in the financial industry to become the “bad guys.” Thus, the regulatory authorities to strengthen the trust industry consolidation, supervision, academics are also thinking about the existence of the trust industry, the reasons behind these violations, common law of this great initiative, whether the application exists in our country, “South Orange North orange “problem. In the theoretical world of inspiration and enthusiasm, the “trust theory of alienation,” The rise of view, the impact growing. China trust industry is under unprecedented crisis of confidence. Perhaps in this era of constant financial innovation, it is inevitable that pays top academics, scholars of social phenomena need to ponder, to trace. By the nature of trust Why? China trust is “alienation” of? Is a topic of great practical significance of the theory.
For this reason, this article will first summarize the “Trust alienation” of the basic ideas, then explore the nature of trust, on this basis, each of Analysis trust theory of alienation, “the reason for not correct.
First, the “Trust alienation theory”
view summary information collected in the author, that “trust system alienation” judgments are two representative papers: First, “trust the system theory of alienation – the trust of our current legal structure of the product evaluation”, the second is “the essence of trust and trust of alienation – gold breach the new Dairy Trust analysis of the legal system.” However, these two papers although the same conclusion, but to “trust theory of alienation,” the judge reasons, are not the same.
in the “trust system theory of alienation – the trust of our current legal structure of the product evaluation” article provides a detailed analysis of the “Equity Trust of alienation,” “alienation of the trust funds”, “benefit right to trust the legal sense of the alienation, “[3] concluded that the product now is an abuse of trust the trust mechanism, in trust,” while “under the traditional business financing act.
trust in the equity analysis, “Trust the system theory of alienation – the trust of our current legal structure of the product evaluation” that, because the beneficiaries of the trustee to pay the price, but no longer makes equity trust The nature of a trust – “because the so-called rust is largely equivalent to the sale based on the nature of the conditional transfer of ownership behavior, rather than simply to the name of separation of ownership and actual ownership of the division title for the purpose of behavior . “[4] the author to make judgments based on this:” In the real relationship of trust, the trustee of the trust without the need to accept ownership of the name of the client to transfer the client to pay the price, the trust beneficiaries do not need to beneficial interest and to obtain the name of all (trustee) to pay any form of consideration. “[5]
in the analysis of the trust funds,” trust the system theory of alienation – the trust of our current products legal structure of the judge, “that because of the trust funds will be required by the trust property does not have” specific nature “of the funds as trust money subject to the laws of nature against the Trust. Author to make judgments based on this: “From the origins and development of trust can be seen, not all property or rights can be the subject of a trust. May constitute the subject of the trust property can only be those such as property rights, ownership of intellectual property has nature and performance of the final exercise for the right person can control the property rights, ownership and property rights do not have the dominant feature of the property can not serve as the trust property. “[6]
in the” nature of trust and trust Alienation – New Gold Dairy breach of trust the legal system analysis “article, the authors believe that trust is a credit-based, behavioral norms of trust are not pre-determine the effect of asset management, and our current collection of the trust funds are expected rate of return to make commitments, so in our trust as a financial instrument of alienation, “the temptations of the trust and investment companies to move rapidly to alienation, commissioned by the nature of the credit disappeared.” [7] Finally, the author concluded: “From the Chinese point of view of reality, we rely on the lack of equity in property law and tradition, so from a legal point of view, by the Trust following the current system is not necessary, even if reluctantly accepted the It is, ultimately only received only a geek alienated. “[8]
can see that these scholars make a” trust theory of alienation, “the logic is mainly based on the following three reasons: ( 1) Trust in the presence of price; (2) Trust property is not “specific objects” but the monetary funds. (3) The trustee of the trust income to the beneficiary to make a commitment to security at the end; that “trust alienation” theory is that these three aspects are contrary to the essential characteristics of trust. So, what is the essential characteristic of trust it? They did not clear.
Second, the characteristics of the nature of trust: the principal-agent, the company compared to
As the name suggests, the trust that credit commission. However, the essential characteristics of this as a trust, there is no difference between the way we are now by the “Trust Act” to adjust the norms of the legal relationship – trust relationship with the principal-agent law. The same agency as a relationship of trust, based on the agent own legal action, identity and relationship of trust, power of attorney granted to the agent, by an agent to handle things himself, managing property. However, the agent must in my name as a legal act, as agent effective establishment of the qualification. Separation of ownership and interest shall not occur, agents do not have access to an agent because agents and property ownership, agents involved in the ownership of property and interests are attributable to being an agent.
So, the difference between trust and the principal-agent view, we define the trust level should be more limited: the transfer of assets and managed by others. Due to the transfer of assets in the trust relationship between the results produced a dual ownership structure: the trustee holds legal title, the beneficiary has equitable ownership. This kind of division of ownership of trust property is difficult to accept the legal systems, in particular, is an equitable system for the unique Anglo-American law, in civil law countries, legal scholars to this title called the nominal ownership, but the equitable ownership of the ownership or beneficial interest is called the essence. This is the first essential characteristic of the trust.
the same logic here, we think carefully, we found this as the essence of trust, trust and company still can not distinguish. Because, in the legal relationship between the structure of the company existence on the same transfer of assets, and because the transfer of assets to shareholders equity, as a legal person the company have legal property rights. Company shareholders will own the property transferring to the company, the formation of corporate property rights, by the company Managing Director to manage the property. “Whatever company or trust, in essence, is a kind of property transfer and management, that is, the original owner of the property will be based on a consideration of all of its assets transferred to others, by others on behalf of management.” [9] Trust and Financial companies are commissioned on behalf of the property management, both related to the division of the assets (AsesstPartitioning). Therefore, only the transfer of assets and managed by others, this does not fully summarize the essential characteristics of a trust.
In fact, the evolution of the company history, the company has also been seen as a kind of trust. The evolution of the company system is divided into three process: early monopolistic nature of the company, a partnership of modern and contemporary nature of the company corporate nature of the company. In the partnership nature of the legal nature of the company to the modern evolution of this process the company, the company, especially without special authorization to obtain legal personality joint-stock companies (UnincorporatedJoint-stockCompany), had quite a long period of time is seen as trust in the form of a. [10] from the early 19th century to early 20th century, this century, the company system in the main capitalist countries learn from each other continue to evolve, and eventually including the formation of corporate personality, limited liability partnership and the principle (that is, centralized management) three features of the modern corporate system. Because the company legal personality, and trust the company with clearly defined.
Thus, trust and company the most obvious difference is the company with legal personality, and trust no. Is a kind of legal entity body (Entity), the Trust is an obligation binding relationship (PersonalObligation). [11] However, this concept has been increasingly questioned. For example, scholars in Taiwan Mr. Xie Zhesheng on the proposition: “Trust has a legal personality, its property and creditor relationship with the company assets and creditors of the same relationship; manager of the company creditors can not claim to the company property, the trustee of the creditors can not claim to trust property; and enjoy the benefits of the company (shareholders), limited liability, as trust beneficiaries. “[12] Mr. Wang Wenyu also believes that” the trust property does not have full legal subjectivity, However, this difference is mainly in form rather than substance. “Hague Convention on trust,” he admitted in the development of the country trust law standard, which provides a prerequisite for trust include at least: First, a similar legal status to sue and be the trustee has v. qualifications; the second is independent of the trust assets, the trustee of the trust assets, the creditor shall not enforce. lumbered Although trust law does not explicitly give the trust property egal status, but does not prevent the function of the independent . “[13]
However, in today reality, most only have a certain trust of subjectivity, not as companies, to obtain a complete corporate entity status. Even if the aforementioned Mr. Wang Wenyu that “the Hague Trust Convention” has been acknowledged to some extent, the subjectivity of trust, but after all, not directly given to the trust with legal qualification. This is because the trust property if given legal personality, the trust system and the legal system in the Foundation may be hard to have a substantial difference. Trust is different from the Foundation, because, after all, built on trust for the trustees letter that asked “basis. Trustee is not the same as a foundation manager or executive body, he must trust in the name of the property owner engaged in activities, and to include the inherent trust property, including property and all property bear the corresponding legal consequences. Therefore, the independent trustees of the trust property, credit and debt, the trustee own assets may not be independent of trust born of the relationship between debt. Trust is different from the legal system as a value system that is in here. Once the package for the legal system is satisfied, the value of is losing the trust of the system is useless Jing addition, the creation of legal requirements are generally set up to the competent authority for registration, non-registered, shall not be established. If the required flexibility for a variety of trust have also been applied for registration can be set up, in fact impossible. Therefore, the Trust up with some nthropomorphic tendencies “, has some of the subjectivity, and in some cases also recognize the legal nature of the exception, but as companies or corporate entities as to obtain the status of a full corporate entity is unrealistic . In general, a different form with the company, although companies can trust to adopt a particular trust property from the inherent property of the trust relationship between the separate, isolated trust property also has a certain independence and subjectivity, but after all, and not the same as the company achieved full legal personality.
on behalf of others as a way of operating assets management, trust and company the difference between his illegal human nature, or that the difference between the company and the trust of his body. As an independent company shareholders, directors, managers, staff and other legal persons, should have its own separate property and separate meaning. But as a legal “fiction” and he meant the formation of bound or formed by the shareholders or directors, in order to ensure the independence of corporate personality, its legal personality is to prevent shareholders, directors, managers and other fraudulent use, abuse, legal need to be adjusted specification shareholders, directors, managers, and the distribution of power between the interests of checks and balances between the behavior of company managers to implement effective supervision and control to ensure that corporate managers act in shareholders interests, which is the company corporate governance structure [14] – control of the company in the company internal organs – the general meeting of shareholders, board of directors, managers, supervisory bodies – in the distribution. We trust the other hand, the legal relations in the trust, the principal of the trust property transferred to the trustee, the trustee responsible for managing the interests of the beneficiaries to operate the trust property. Trustee as the guardian of the trust property as trust property legal owner of trust property in an absolutely dominant position of control. The interests of the beneficiary as the owner of a relatively weak position. If there is no legal binding on the trustees – fiduciary duties, which inevitably occur possession of the property of their position to abuse the situation, which would endanger the realization of the purpose trust. Therefore, the Trust understanding is more important is the concept of equity in its built on the principals, trustees, beneficiaries of the relationship between rights and obligations. “Trust as a rule of equity the most important part, has been regarded as acts of conscience fought back the favorable non-weapons, therefore, common law trust is not just a specific property is awarded as a legal structure, otherwise we could not really understand Trust system in the common law meaning, precisely, equity in the trust system itself includes the separation of two rules: the rules on property and on the granting of the power of trusted objects and their corresponding obligations between the rules . “[15]
Thus far, we already know, because the company has a legal personality, the law as one of the stakeholders (shareholders, directors, managers) to set the right checks and balances – Corporate Governance . Trust no legal personality, in fact, trust in the creation of the trustee and the beneficiary of a very high fiduciary duties, once trust was established, the beneficiary of the trustee placed great trust, the trustee for the beneficiaries of the transaction have a high degree of control. This relationship is not an ordinary commercial relationship, but a trust or fiduciary relationship, the trustee beneficiary and therefore bears fiduciary duty. Thus, with the company governance structure correspohillbilly shirt tnd to the specification to adjust its trust-related rights and obligations of the main checks and balances is – the trustee under the trust law fiduciary duties. [16] “The basic idea of ??the Anglo-American Trust: Trust has an equitable nature: give the beneficiaries have equitable ownership of trust, the trust will be the obligation imposed on the trustee, the trust obligations imposed fiduciary duty is, in essence.” [17]
Thus, the essence of trust is also embodied in the trustee fiduciary duties, that fiduciary duty. Fiduciary duties in trust law since the 18th and 19th century refers to a court of equity by the number of British students from speech jurisprudence the trustee must assume the obligations. Because the summary made by the case, the contents of the range of other statutes such as the obligation is not so clear. Fiduciary duties will be divided into general duty of care and duty of loyalty to two. The so-called duty of care (du-tyofcare) means: special relationship of trust based on the trustee for the interests of the beneficiaries, management, and disposition of trust property, so it should make a very high degree of duty of care to deal with trust matters, in order to achieve the purpose of trust . Duty of loyalty (dutyofloyalty) is the trustee of the trust to achieve the key objective, honest, credit, loyalty is a description of the obligations, the trustee is the trustee must not use the position for personal gain, the trustee of the trust business in addition to receiving proper compensation , shall not directly or indirectly to obtain the trust property interests. Some argue that the duty of loyalty under the trust relationship should be defined as: trust-based relationship will inevitably occur, requiring trustees to manage the property under a trust purpose must be to the interests of beneficiaries and their interests will not conflict with the beneficiaries precedence over the interests of their own interests and obligations of conduct. [18] the duty of loyalty, including: prohibition for their own personalwomens apparel gain; prohibit self-dealing; trustees and beneficiaries of the transaction shall apply “fair trade rules”; against the industry competition. [19]
the essential characteristics of trust, we can also famous from the two international conventions of the trust to do reference. The most famous “on the trust application of the law and recognized by the Convention” “Hague Convention” Article 2 states: “according to the purposes of this Convention, the trust relationship is founded by the principal to the beneficiary interest or other specific purposes to transfer during his lifetime or testamentary trustee of the way the property is placed under the control of a legal relationship between the Trust has the following characteristics: (a) of the property as a separate fund, rather than part of the trustee of their property; ( b) the name of the trustee or representative on behalf of the Trustee holds trust property; (c) the Trustee under the Trust terms and the law added to his special duties, management, use or dispose of property rights and due obligations. settlor to retain certain rights and powers of the trustees themselves will enjoy the fact that as the rights of the beneficiaries, not necessarily in contradiction with the existence of trust. “[20]
In addition to “Hague Convention” outside, in order to promote trust, or similar system in the Trust (trust-like), widely used in Europe in 1998, Britain, France and Italy the Netherlands and other European countries, scholars of European Trust Law Organization International Working Group proposed They proposed “European trust law principles” (Princi-plesofEuropeanTrustLaw). “European trust law principles,” Article 1 of the Trust is defined as: (a) the trustee has the inherent separation of property and personal property must be for others (“beneficiaries”) or achieve a purpose to deal with these assets; ( b) the trustee and the beneficiary of more than one person, the trustee can also become beneficiaries of their own; (c) Trust Fund (trustfund) required from the trustees of the independenike storent existence of the spouse, heirs and personal creditors recourse; (d) on a separate trust funds, the beneficiary enjoys the right of the people (personalrights) and can also be wrong transferee all or part of the trust property of a third person have recourse to the property. [21]
While these two international conventions for the definition of trust is not entirely the same, but its implication is the same basic legal principle: trust is a relationship about a specific property, the trustee of the have legal title to specific property and interests of the beneficiaries or to dispose of the property for a specific purpose, the establishment of trust trustee fiduciary duties to regulate the management of certain property and dispose of. “Asset transfer”, “managed by others,” “fiduciary duty” constitutes the essential characteristics of the trust. Fiduciary duties as a fiduciary relationship of the core.
Third, the “Trust alienation oint of view Analysis
above by the same commission for the generation of wealth management, corporate, trust for comparison, the nature of the trust characteristics: the transfer of assets, managed by others, fiduciary duty. Which the trustee under the trust law fiduciary duties to the beneficiaries of the trust relationship for the core. Now we clarify the essential characteristics of the Analysis of Trust “Trust alienation theory” point of view.
(a) “one of the reasons the trust theory of alienation: the existence of price,” Analysis of the
“Trust alienation” One reason is that now there is some trust in the trustee for the commission transfer of ownership of the name of the property and pay the right price, while the beneficiary to the trustee for the beneficiary to obtain payment of the price, so this kind of trust has been alienated, “the nature of the conditional sale of the ownership transfer of behavior.” [22] that is one of the essential characteristics of a trust “asset transfer” associated with the occurrence of price, so some scholars to believe that trust is not trust the product. So, the Trust legal framework, due to the transfer of assets associated with the occurrence of price, this “right price” there is really contrary to the essential characteristics of trust it?
In fact, the scholars to make such judgments is no commercial trusts to understand the difference between trust and civil. Trust has civil and commercial matters Trust Trust classification. If the client in the transfer of trust property to the trustee to the trustee does not charge for the price, which is the transfer of the property is free gift, the trust created by a private civil trust. If the client due to the transfer from the trustee trust property for the price charged to the trustee, the trust of commercial trust.
private civil Trust has been the soul of Anglo-American trust system, the civil trustee transfer to the trust principal in the trust property free of charge, so in the traditional Anglo-American legal culture, free transfer of the trust as a method branch, but the emergence of commercial trust has already changed this perception. Commercial Trust is the United States in the 20th century the invention of industrialized society, but also flexibility in the modern business trust in the use of the inevitable result. Since the Trust recent commercial momentum of rapid development and become active capital market, it is also because of commercial trust the role of capital markets to attract the common law countries other than countries, which have to introduce to the original trust does not trust the system countries. It should be said of China introduction of trust system, the most important reason is based on trust in the commercial capital markets and broad prospects.
However, China “Trust Law” will be roughly classified as civil trust trust, business trust and public trust, according to the general understanding of our civil and business trust trust trustee difference is whether Trust for the industry, and if so, for the business trust; otherwise civil trust. [23] where the concept of our business on trust and the Anglo-American trust law, trust and private civil and commercial matters overlap between the Trust. For example, the trustee is a trust and investment trust companies of the Anglo-American civil law is based on our trust business trust; and trust in our business because if the trustee does not accept the trust property to the client to pay the price, the Anglo-American trust law is based on trust rather than commercial civil trust. According to the nature of our trustees are divided into civil trust and the trust business trust, by contrast, not as good as the Anglo-American trust law entrusted to the trustee under the transfer of property is charged on the price of the standard the Trust is divided into civil and commercial matters Trust Trust more scientific. Because, to Anglo-American trust law in civil and commercial matters Trust Trust and criteria for the distinction, more trust in the trustees to clarify, the client, the relationship between the beneficiaries. The use of Anglo-American trust law definition of commercial trust, the “trust theory of alienation” in the “right price” question will be solved.
typical commercial trusts, generally used for structured finance transactions: [24] ⑴ clients sell their property (for the price charged) to the trustee. ⑵ trustee of the trust property into smaller share in the capital markets to investors sold to raise funds. ⑶ and investors pay the price to the trustee of a trust beneficiary certificates obtained after the interests represented. ⑷ trustee with the funds raised to pay the principal of the trust property as the purchase price. ⑸ and trustee of the trust property management and investment and to receive income, with the proceeds paid to investors as a trust beneficiary certificates of payment, the excess part of the payment to the client. Trustees receive remuneration for their services, clients also benefit the trust property remaining beneficiaries.
(b) “trust alienation second reason: the trust property is money,” Analysis of the
Trust said the introduction of the civil law system, we first thought of the trust property is double ownership and a matter of a civil rights conflict. Now, the introduction of the system of civil law countries trust through separate legislation, the trustee of the trust property ownership and the ownership of the beneficiary as a special law, to reduce the impact on property law principles.
However, from the Anglo-American trust law or the trust property in the ownership of this dual confusion as to exactly what the subject property to a trust, as trust property? How to set up a double on the property ownership? Academic or difficult to answer, although practitioners have drastic design of trust property for a variety of products. To the “Trust alienation theory” view of the scholars said: “Trust as a legal relationship to the object of the trust property only system that can reflect the nature of trust – ual ownership property separate property.” From this view, “as a trust the subject property can only be those such as property rights, intellectual property and other properties can be expressed as a right of ownership may eventually exercise control of property rights, ownership and property rights do not have the dominant feature of the property can not serve as the trust property. “[25]
According to common law concept of equity, because trust is a form of property management for the primary purpose of legal relations, therefore, the trust property should be a first property, which usually can be monetary terms the value of rights. Meet the legal requirements of any property or property rights can be used as trust property, and as trust property and property interests are not necessarily the same as for full ownership of a property, but may be just one part right. It can be a present for that property rights can also be a future interest. Therefore, to serve as the trust property, including money, real estate, movable property, securities, stocks, bank certificates of deposit and other tangible property with a value of the property and copyright, patent, trademark, right of performers, who recorded in the intangible property right some property rights, including ownership in addition to a variety of other property rights such as mortgage, pledge, ground power, beneficial interest, lease rights, inheritance rights, claims, and so on. As for moral rights, including damage due to personality and to obtain damages claim, estate division claim, because the nature of personal rights has not become trust property. In addition, the set is generally believed that the trust property should be limited to positive trust property, the property can not be purely negative trust property because the property if the debt and other negative, then set the trust, the beneficiary will not be able to obtain benefits from the trust system, but will therefore debt, which was contrary to the purpose of the trust system.
civil law there is no “property rights” concept, in its property, property rights claims and other relevant legal terms there is no uniform position on the concept, so the “trust property” for the civil law countries (region) of the Trust Law of the absorption (such as Japan, Korea, Taiwan, China). Taiwan “trust law” provides that the Trust is the principal to the transfer or other disposition of property rights, the trustee for a certain purpose, for the interests of the beneficiaries or for specific purposes, management or disposal of the assets of the trust relationship. The trustee of the trust property is property acquired by the trust behavior. The so-called “property rights”, the general explained that the money can be calculated according to the value of rights, such as movable and immovable property and debt, stocks and bonds and other securities; patent, trademark, copyright and other intellectual property rights and quasi-property rights mining rights, fishing rights. Personal rights, such as name, reputation, identity rights, due to the nature of the exclusive and difficult to judge the value, it can not serve as the trust property. [26] In Japan, they meet the “Civil Code” provisions of the trust property can be set, but the shift in the business trust in the trust property be limited to six categories: money, securities, monetary claims, personal property, the land and its fixtures and floor rights and land lease rights. [27]
China “Trust Law” Section 7 states: “to establish a trust, the trust property must be determined, and the principal of the trust property must be legally owned property. This Act referred to property including the legitimate property rights. “from the section we can see that our legislation does not require that the trust property is determined, as long as can be determined. Second paragraph of the article clear property and property rights can draw parallels. According to China “trust and investment management approach”, the institutions engaged in trust business, you can set the trust property, including: (1) funds. Generally refers to monetary funds; (2) securities. Refers to a certain nominal amount, or claims on behalf of property ownership certificate. Including bills of lading, warehouse receipts and other in-kind securities, checks, money orders and other monetary claims and other securities and equity securities into three categories of capital; (3) movable property. Defined in the land, houses and attachments for all entities other than the property; (4) real estate, including land, houses and attachments; (5) financial claims, refers to a loan or owed by failing to recover, and to receive from others Money rights.
visible, whether under common law principles of trust, a trust or from the civil law system of national legislation of, or according to China “Trust Law” and related administrative regulations, monetary funds as trust property of. To the “Trust alienation theory” view of the scholars that the only reason “with the dominant sense of property,” the “specific objects” of the subject property to a trust, because others, such as money, money claims and other property as a trust , the beneficiary can not enjoy that type of property to recover the trust property and the effect – “Investors rust funds of the actual effect is still the same as the general creditors of the trust claims the right to request money Moreover, this claim had to depend on the realization of the right to request trust in the ability to repay the money, does not depend on investors rust property of the effectiveness of property rights. “[28] In fact, hold this view, the key still did not understand the common law of equity ownership in the real meaning of the beneficiary.
by common law, the beneficiary as the equitable beneficiary may request the property to recover equitable relief, the equitable relief based on the general principle of the right to request that, as long as the start there is trust relations, the property holds equitable interest in property man-made equitable owner, from any person holding property in the hands of the property to recover his rights, but without the knowledge of the price paid except bona fide purchasers. And of course, is to be trusted trustee of a trust position, since the exercise of equitable property rights granted. Common law as the beneficiary owner of the trust property (equitable ownership or substantial owners), so the Anglo-American trust law is based on the pattern of property to be relief that gives the beneficiary to recover claim the right (FollowingorTracingProperty), directly from the transferee to recover trust property, the only bona fide buyer (not in good faith and to be paid) to cut off such recourse. Property rights model for shaping the common law by recourse to the trust property, and thus: (1) The trustee can be traced to any change in the type of form or the existence of the trust property and to new forms of property rights under the trust . In addition to the principal beneficiary that can be transferred to the trustee of the trust property to exercise the right of recourse, but also be attributed due to the identity of the trust property of all recourse; (2) When the trust property and the inherent property of the trustee mixed, in the case to be able to identify back. However, the obligation recognized by the trustee of the burden, otherwise, the property has been formed as a mixture of the whole trust property; (3) When the mixing of different trust funds, mixed funds for the right to dispute a few ideas, should be equal proportion Share (paripassu), if the trust fund beneficiaries with knowledge of the unpaid costs of capital are mixed together, should apply the same rules.
As long as the correct understanding of the beneficiaries of the trust equity ownership of the content and characteristics of fiduciary duties, we can well understand why national legislation provide for funds, debt funds can be used as trust property, would not that Trust funds are “alienation of trust funds.”
