Showing papers in "National Taiwan University Law Review in 2015"

Trust Law of China and its Uncertainties

Abstract: Because of the trust’s advantages in investment, banking, financing and property management, China took the bold step of introducing the trust in 2001. However, as a product of equitable jurisdiction, the trust seemed to be alien to Chinese law, and seemed particularly inconsistent with the Chinese property system. Therefore, China went down a tortuous road upon its introduction of trusts before eventually promulgating the Trust Law of China in 2001. However, the Trust Law of China deliberately leaves open the fundamental question of the introduction of dual ownership of trust property, which results in a number of limitations in the Chinese legislation. For instance, the ambiguous ownership of trust property and the outstanding nature of the beneficiary’s rights all bedevil efforts to analyse Chinese trust law. In this paper, the author first investigates the history of trust in China and Legal Reforms of Chinese Trust Business. Based on this analysis, the following section presents a detailed examination of the Trust Law of China and the limitations of the Chinese trust system.

East Asian trusts at the crossroads

Abstract: The purpose of this work is to scrutinize the legal structure of trusts in Taiwan, Japan and South Korea. The so-called infrastructure of the private law of them is rooted in the Roman-Germanic basis, which adopts dichotomous system in respect of the private law dealing with property: the law of property and that of obligation. However, the adoption of the trust has caused some problems. Though controversial, the contract-based view seems to be the majority thesis in the East Asian civil jurisdictions, yet the property-based view dominates the common law world nowadays. However, being influenced by common law, the property-approach is also asserted in the aforementioned jurisdictions. It should be noted there has been another approach normally adopted by some civil jurisdictions and mixed jurisdictions, i.e. the doctrine of separate patrimony. The East Asian civi jurisdictions’ approach is somehow at a crossroads. Being a legal system where nomenclature matters, the issue of taxonomic classification can hardly be ignored. We must find a way out from the crossroads, either perfect or not. It is to this task to which the present work is devoted.