英美信托所有权重述及其中国法引入的比较研究

I OVERVIEW II COMMON LAW TRUST AND ITS DUAL OWNERSHIP 1． Definitions and the Nature of the Common Law Trust (1) Definitions of the Common Law Trust (2) The Nature of the Common Law Trust 2． The Concept of Dual Ownership in Common Law 3． The Legal Ownership of Trust Property (1) A Trust Does Not Fail for Want of a Trustee (2) The Trustee's Title to the Trust Property A． A trustee's administrative powers B． A trustee's dispositive powers (a) The power of maintenance (b) The power of advancement (c) The power of appointment (d) Powers of selection under discretionary trusts (3) The Trustee's Equitable Obligation A． A trustee's fiduciary duty B． A trustee's other duties (a) Duty to safeguard trust assets and invest trust funds (b) Duty to exercise reasonable care (c) Duties of impartiality (d) Duty to keep accounts and to provide information (4) Debriefing 4． The Equitable Title to Trust Property (1) The Nature ofa Beneficiary's Rights (2) The Beneficiary's Specific Rights A． A beneficiary's right to compel due administration B． A beneficiary's right to bring a derivative action on behalf of the trust C． A beneficiary's right to terminate the trust Summary III THE INTRODUCTION OF TRUSTS INTO CIVIL LAW AND ITS OW-NERSHIP OF TRUST PROPERTY 1． Difficulties and Necessity of the Introduction of Trusts into Civil Law (1) Difficulties with the Introduction of Trusts into Civil Law (2) Necessity and Significance of the Introduction of Trusts into Civil Law 2． Possibility of the Introduction of Trusts into Civil Law (1) Possibility of the Introduction of Trusts from a Theoretical Perspective and the Notion of Spe Patrimony A． The possibility of the introduction of trusts from a theoretical perspective B． The notion of spe patrimony (2) The Possibility of the Introduction of Trusts from a Practical Perspective 3． Introduction of Trusts into Civilian Jurisdictions in General (1) Introduction of Trusts into a Pure Civil Law Jurisdiction A． Introduction of trusts in the German civil law tradition B． Introduction of trusts in the Latin American civil law tradition (2) Introduction of Trusts in Mixed Jurisdictions A． Introduction of trusts in Louisiana B． Introduction of trusts in South Africa 4． The Scottish Theory of Trusts (1) Different Theories of Ownership Developed in Scotland A． Legal person theory B． Theory of a beneficiary's ownership (2) Fiduciary Ownership in the Mixed Scottish Legal System A． Fiduciary Ownership in French law B． Fiduciary ownership in Scots law 5． Ownership of Trust Property in Quebec Law (1) Regulations of Ownership of Trust Property pre CCQ A． Beneficiaries' ownership of trust property B． Trustee's ownership of trust property (2) Regulations of Ownership of Trust Property in the CCQ A． The CCQ's significance in stipulating the notion of patrimony by appropriation (a) Notion of patrimony by appropriation (b) Rights and obligations of the settlor， trustees and beneficiaries under the notion of patrimony by appropriation B． The CCQ's significance in developing the trust in Quebec law (a) Introducing a wider and more defined concept of the trust (b) Simplifying the modification of the trust Summary IV TRUSTS AND OWNERSHIP OF TRUST PROPERTY IN CHINA 1． History of Trusts in China， Legal Reforms of Chinese Trust Business， and the Drafting of Trust Law of China 2． Notion of Trusts in China and Difficulties in the Introduction of Trusts (1) Notion of Trusts in China - Trust and Investment Companies (2) Difficulties in the Introduction of Trusts 3． Regulations of the Trust Law of China (1) Definition， the Creation， and the types of Trusts in China (2) Rights and Obligations of the Settlor (3) Rights and Duties of the Trustee A． Trustee's duties (a) The regulations of fiduciary duties and their limitations (b) The regulations of duty to act personally and their limitations (c) The regulations of duty to account and their uncertainty B． Trustee's rights C． Trustee's powers (4) The Capacity and Rights of the Beneficiary (5) Termination of Trusts and the Charitable Trusts (6) Remedies for a Breach of Trust A． Personal remedies against trustees (a) Monetary remedies against trustees (b) Non-monetary remedies B． Proprietary remedies and claims against third parties C． Criminal liabilities for a breach of trust 4． Uncertainties of the Chinese Trust System (1) Ambiguous Ownership of Trust Property A． Statutory ambiguity B． Interpretation ambiguity C． Reasons for the vague regulation of the Chinese law and its problems (2) Outstanding Characteristic of the Beneficiary's Right (3) The Registration System of Trust Property Exists in Name Only Summary V A BETTER UNDERSTANDING OF DUAL OWNERSHIP IN CHINA 1． Possibilities to Distill the Trust and Its Dual Ownership into China (1) Dual Ownership is a Misunderstanding of the Common Law Trust A． Dual ownership is the external appearance but not the essence of the trust B． The difference in terminology used to study the trust is misleading (2) Renovations or New Judi Interpretations of Trusts are Required to Fit into Modern Development 2． Trusts Without a Theory of Dual Ownership - Possible Designs in General (1) Transfer Ownership to Beneficiaries (2) Settlor's Retention of Ownership (3) Ownerless Trust Property (4) Transfer Ownership to Trustees 3． Design of the Binary System of Real Rights and Personal Claims in China (1) The Binary System of Real Rights and Personal Claims Plays the Same Role as Dual Ownership (2) Accommodate Legal Ownership as Trustee's Unitary Ownership in China A． Granting the trustee unitary ownership leads to no excessive expansion of trustee's rights B． Granting the trustee unitary ownership would not undermine the beneficiary's rights C． Granting the trustee unitary ownership brings no change to the position of trust parties (3) Accommodate Equitable Title as a Spe Personal Claim in China A． Challenges of the real right theory and the theory of co-existing real rights and personal claims (a) Challenges of the real right theory (b) Challenges of the theory of co-existing real rights and personal claims B． Analysis of the personal claim theory (a) Beneficiary's right has a broader meaning than typical personal claims (b) The difference between a beneficiary's right and a typical personal claim does not prevent the introduction of personal claims theory into China Summary CONCLUSION ANNEX Trust Law of the People's Republic of China (Order of the President No． 50) Table of Cases Table of Legislation List of Abbreviations