What Is a Complex Trust?

International trust refers to the economic act of accepting the trust and entrustment of others in international exchanges, acting for managing property or acting for the benefit of a designated person. Divided into two basic businesses of trust and agency. The trust business mainly includes: Short-term funds trust, that is, accepting entrustment from domestic and foreign customers, absorbing their foreign exchange deposits, and then operating on behalf of loans. The short-term fund trust business mainly includes trust deposits, trust loans and entrusted loans. The latter refers to loans issued by clients to trust companies based on specified objects, uses and quotas; investment trusts, which use the absorbed trust funds and own funds to invest In domestic or foreign enterprises or projects, it is divided into trust investment and entrusted investment; Fundraising trust, that is, entrusted to issue or distribute securities on behalf of domestic and foreign financial markets to raise funds for clients. At the same time, the trust company itself can directly raise funds as a source of funds for operating the trust business. ^[1]

International trust

Right!

International trust refers to the economic act of accepting the trust and entrustment of others in international exchanges, acting for managing property or acting for the benefit of a designated person. Divided into two basic businesses of trust and agency. The trust business mainly includes: Short-term funds trust, that is, accepting entrustment from domestic and foreign customers, absorbing their foreign exchange deposits, and then operating on behalf of loans. The short-term fund trust business mainly includes trust deposits, trust loans and entrusted loans. The latter refers to loans issued by clients to trust companies based on specified objects, uses and quotas; investment trusts, which use the absorbed trust funds and own funds to invest In domestic or foreign enterprises or projects, it is divided into trust investment and entrusted investment; Fundraising trust, that is, entrusted to issue or distribute securities on behalf of domestic and foreign financial markets to raise funds for clients. At the same time, the trust company itself can directly raise funds as a source of funds for operating the trust business. ^[1]

International trust means that the matters involved in the trust business have exceeded the scope of a country, which has caused the use of trust property between countries.

International trusts undoubtedly have some of the basic characteristics of the trust system mentioned above, but from

Synthesizing various doctrines and theories of private international law, the legal application of international trust should follow the following basic principles:

(I) Principle of party autonomy

The meaning of autonomy in the application of trust law refers to the autonomy of the trustor (trust founder) in common law countries. In civil law countries, it is considered that the meaning of the trust relationship between the client and the trustee represents a consistent result. Article 6, paragraph 1, of the Hague Trust Convention provides that the governing law of the trust is governed by the law chosen by the client. This choice must be explicitly or implicitly stated in the written document establishing the trust or certifying the trust and, if necessary, explained according to the circumstances of the case.

In modern society, most trust businesses are undertaken by professional trust companies. Therefore, as the most important subject of trust legal relations, its meaning should be fully respected. The legislative concept that the client chooses the law alone and denies the trustee's right to choose the law is indeed unfair. In summary, party autonomy in the application of trust law should be the common autonomy of the client and the trustee in the trust during life, that is, the law of common choice. When the choice is unknown and the parties' intentions need to be inferred, the true intentions of both the client and the trustee should be considered so as not to be unfair. In a testament trust, since a will is a unilateral expression of will, its legal choice naturally depends on the unilateral expression of the will of the testator.

(B) the principle of the closest relationship

When the parties have not chosen the law applicable to the trust, the applicable law of the trust is the law most closely related to the trust. Article 6, paragraph 2, of the Hague Trust Convention provides that if the law chosen by the client does not provide for a trust system or provide for the type of trust involved, the choice of law shall be deemed invalid and the provisions of Article 7 of the Convention shall apply. OK law. Article 7 provides that if the parties do not choose which law should apply, the trust should apply the law with which it is most closely connected. In determining the law most closely related to the trust, special consideration should be given to: (1) the place of trust management designated by the trustee; (2) the place where the trust property is located; (3) the place of residence or business of the trustee; (4) the purpose of the trust And where it's done. Although the Convention only lists four factors to be considered in Article 7, the Convention does not exclude other factors that are most closely related to trusts. The Daisy and Morris On Conflict Law analyzes this: "The law of the location of movable property in a trust is not the appropriate law to adjust the validity of the trust because the trust property will be located in different countries. The place where the trust documents are signed is also inappropriate. , Because it is not sufficiently related to the substance of the transaction, and the place may be purely accidental, or even carefully designed to take advantage of a favorable law. The place of residence of the founder is more important. The place of residence of the beneficiary Much less important than the place of domicile of the founder? The legal style of the trust document is also very important because it implies the intent of the founder. The trust management place designated by the founder is also an important factor. " The closely related place often adopts the behavioral place with characteristic performance as the basis for determining the closely related place. If the trustee's management of the trust can be regarded as a characteristic performance of the trust, it can be inferred that the place of management of the trust and the place of habitual residence or business of the trustee are the closest places of trust relationship.

In civil law countries or regions, the choice of the most closely connected place is often specified in legislation, such as identifying several alternative places to limit the discretion of the judge. The common law system tends to leave this to the courts to resolve cases on how to determine the closest place of contact. The legislation of this type of country or region is only a principled provision, and the specific operation depends on the discretion of the judge. If many factors are concentrated in a certain place, then the place may be the place with the closest connection to the trust; or the three types of factors such as the daily management of the trust, the location of the trust fund, and the possibility of the trust being invalid should be emphasized consider. Common law countries or regions mainly use the method of interest analysis to determine the most closely connected place. This method is more flexible than the civil law system because the court is not restricted by a few fixed points of connection.

(3) Principles of applying the law on the location of real estate for real estate trusts

The legal application of real property right relations has been established since the emergence of the "legal distinctions" of the 13th and 14th centuries. This principle has been widely accepted by lawmakers around the world for centuries. The location of the real estate enjoys significant benefits for the real estate. Therefore, regardless of the common law system or the civil law system, the real estate trust and the real estate trust are distinguished, and different applicable laws apply. The civil law system focuses on the effect of real property registration on real estate, and often applies the law of the place where the real estate is located. The common law and common law system also applies the real estate location law to real estate trusts. That is to say, except for the interpretation of real estate trusts, the validity of real estate trusts or testament trusts, and the management of real estate trusts, the real estate location law usually applies. As stated in the Restatement of the United States Conflict of Laws: Real estate trusts apply the laws applicable to the courts where the real estate is located. China's existing laws and judicial practices require the conflict of laws of real estate to apply the law of the location of the real estate. Therefore, expressly stipulating and separately enumerating the legal application of real estate trusts is a summary and reference of the legislative experience of various countries in the world, and it is also to make it easier for China's judgments on real estate trusts to be recognized by the country where the real estate is located.

(D) the principle of division

It would be too mechanical if all aspects of a legal relationship were to be governed by the governing law guided by a connection point. therefore.

With the development of private international law and the requirements for the rationalization of legal application rules, different aspects of a legal relationship are distinguished, different conflict norms are applied according to their different natures, and the laws that should be applied are determined separately. This method is called the division method .

There are many types of trusts and various establishment methods. The trust's property may be movable or real property, and the beneficiaries may be the clients themselves or others. These different types of trust require completely different legal rules to govern. At the same time, the legal relationship of trust is extremely complicated. The rights and obligations established by a trust involve the transfer of trust property, the management of trust property, the establishment of trust income, the interpretation of trust documents, the rights and obligations of trustees, and their liability for breach of trust. And other issues. These issues of different nature should apply different legal rules. Therefore, regarding the conflict of trust laws, the principle of division should be adopted to classify trusts of different natures, divide different aspects of the same trust, and apply different legal rules respectively. Article 9 of the Hague Trust Convention also provides that the severable matters of the trust, especially the management matters, may be governed by different laws. According to the provisions of Article 9, the principle of division applies both when the parties choose the law and when the governing law is determined according to the principle of the closest relationship. ^[2]