Search

The Core Elements of the Trusts: From the Start of Three International Documents

Author(s)

Zhao Ning

Affiliation(s)

School of Law, Nanjing Audit University, Nanjing, Jiangsu, China

Abstract

The extensive application of trusts and trust laws has demonstrated that trusts, as an institutional tool with functional advantages in the realm of private wealth inheritance, on the one hand, offer an innovative framework for the transfer and management of personal assets. This serves as a valuable reference for non-trust law jurisdictions, displaying the distinctive structure of rights and obligations. On the other hand, for trust law countries, trusts born in different jurisdictions call for the adjustment and regulation of unified rules. Researching the core elements of the trusts can contribute to achieving these two goals. By carefully examining three international documents, this essay argues that each core element of trust intertwines to form a causal web: trust operates as a tool that protects beneficiary' interests and supports the fiduciary position of trustees (characterized by the separation of trust property). The location of ownership of trust property, however, remains an optional element determined according to local circumstances.

Keywords

Trusts; Trust Law; Core Elements; Essence of the Trust Legal Relationship

References

[1] Walter Frederick Buckley. Sociology and Modern Systems Theory[M]. Engle- wood Cliffs, NJ: Prentice-Hall, 1968: 41. [2] George Gretton, ‘Scotland: The Evolution of the Trust in a Semi-Civilian System’ [J] . Itinera Fiduciae: Trust and Treuhand in Historical Perspective, Duncker and Humblot, 1998: 507. [3]Swadling W. Trusts and Ownership: A Common Law Perspective[J]. European Review of Private Law 2016,24: 401. [4]Ho L. Trust laws in China: history, ambiguity and beneciary's rights[J]. Re-imagining the Trust: Trusts in Civil Law, 2012: 183-221. [5]Tony Honoré. On Fitting Trusts into Civil Law Jurisdictions [J]. Ssrn Electronic Journal, 2008.DOI:10.2139/ssrn.1270179. [6]Lionel Smith. Confusion, Illusion, or Delusion: The Irreducible Core of the Common Law Trust [J]. Forthcoming in the Supreme Court Law Review,2023: 3-11. [7]Ben McFarlane and Robert Stevens, ‘The nature of equitable property’ (2010) 4 Journal of Equity 1 and Ben McFarlane, The Structure of Property Law (Oxford: Hart Publishing, 2008) . [8]Kennerg. G. C. Conceptualizing the Chinese trust: some thoughts from Europe[M]// Towards a Chinese Civil Code. Brill Nijhoff, 2012. [9]Pierre Lepaulle. An outsider's view point of the nature of trusts[J]. Cornell LQ, 1928, 14: 52. [10]Langbein J H. The Contractarian Basis of the Law of Trusts[J]. Yale Law Journal, 1995, 105: 625.