Trust on the invalid theory - Comparative Law from the Angle of Trust

Keywords: Invalid trust / credit fraud victims trust / litigation trust / beneficiary of the trust fail

Summary: Trust Law of the countries and regions are the purpose of violating the Law or public order and morals of the trust as the trust invalid. Claims of fraud victims trust in some of these trust Law trust it characterized as ineffective, and some may revoke it characterized as Trust, but in front of a qualitative more conducive to protecting the interests of creditors. some of the trust Law will be important issues were uncertain terms the provisions of the trust and the trust is invalid trust litigation, but only on the front of the provisions of a trust is void of practical value, on the back A trust is contrary to the provisions of a valid and reasonable values. Some Trust Law will be the beneficiary of the trust provisions of unqualified trust invalid, but because of the trust for the purpose of a violation of the law, so that none of its provisions separate existence of the necessary. Notwithstanding the different legislative arrangements, the relevant national and regional trust law will return the property they are recognized as invalid the results of the Trust. The debt collection provisions of the trust is not a valid trust for the innovation of trust law, but it is not desirable


This Article is in the express trust that is the principal said, by express intention or behavior through the establishment of trust within the trust to discuss the trust invalid. This Article refers specifically to the alleged invalid without legal effect that the Trust is not able to place its trust between the pArties led to law on the rights and obligations of the express trust, not only that, it is limited to special provisions by the Trust Act to be invalid invalid trust. ① <<PRC Trust Law "(referred to as <<Trust Law"> on the invalid provisions of the Trust do . From the perspective of comparative law study of invalid Trust Trust Law from the Perspective of wealth is no doubt the need for a considerable.

First, on the type of trust is not valid

In common law countries and regions exist in the Trust Law, the provisions of the Trust on the invalid law in these trusts are present and especially the United States, the corresponding provisions of trust law in the most representative. Civil law is different is to develop a trust law countries and regions in the legal systems of countries and regions in a minority, the relatively small number of Civil law in every trust law are subject to the profound impact of Anglo-American trust law, but in these trust law provides for invalid trust in only 2001 <<Mauritius Trust Law ">, 1961," South Korea Trust Law ">, 1996 China Taiwan region" Trust Law "and in 2001," Trust Law ">. as a blueprint for Civil Trust Law 1922 <"The Japanese Trust Law"> does not provide valid trust, other Civil law countries and regions concerned but also does not provide valid trust law trust. ②

For the above four trust law were provided invalid trust a total of: (1 Purpose violation of the law of the trust, (2 purposes against public order and good morals of the Trust, (3 fraud victims claim the trust, (4 beneficiaries uncertain trust, (5 Articles do not determined that the trust can not be enforced, (6 clients failed the trust, (7 litigation trust, (8 beneficiary of the trust failed.

American trust law trust in these eight (1, (2, (3 void the provisions of the Trust. <"American Restatement of Trust" (Edition 3 Article 29: "intent to establish the terms of the trust or the trust as long as with one of the following circumstances is invalid if: (1 Purpose violate the law or its implementation involves a crime or tort, (2 violation of the rules against perpetuity, ③ (3 contrary to public policy. "④ <<United States re-trust law state "(article 63, section 2, paragraph 1, states:" The purpose of the client to establish a trust if it is to defraud creditors or others, the trust invalid, but the second paragraph of this section except as otherwise provided. "⑤ <<Mauritius Trust Law "> will be one of the (1, (2, (4, (5, (6 provisions of the trust is invalid, its Article 12, paragraph 2, states:" under the following circumstances, the trust invalid: (1 to handle Any violation of the laws of Mauritius affairs of a particular purpose; (2 to grant any rights, powers or duties, but for the purpose of the exercise of the rights or powers or the performance of the obligation would violate a specific law of Mauritius, (3 to determine the beneficiaries do not exist, but the trust, except for the purpose of the Trust, (4 court to declare the trust: ... ... (b violation of public order and good morals, (c uncertain terms that could not be enforced; (d commissioned at the time of its establishment people do not have the legal capacity to establish the trust. "<<Korea Trust Law"> will be one of the (1, (7 species defined as invalid trust: its Article 5, paragraph 2: "Trust in the purpose of unlawful or can not be established , then the void. "Article 7 states:" the trustee of the trust for the purpose of litigation is invalid. "China Taiwan region" Trust Law "will be one of the (1, (2, (7, (8 provides invalid trust of which Article 5 states: "The trust acts, has one of the following circumstances shall be invalid: (1 the purpose of violating the provisions of mandatory or prohibited, (2 purpose contrary to public order or good morals, (3 for appeal or litigation as the main purposes; (4 to a specific property of the transferee is not lawful for the property rights of the beneficiaries of those people. "null and void because the trust will lead to the establishment of a trust which they are valid, showing that the method will have this four cases the provisions of the Trust acts as invalid by the Trust acts in fact it is their trust established by the provisions of the preceding four invalid trust.

Trust Law, which are the above four (1, (2) types of provisions of the trust is invalid, this point can be taken to reflect the Anglo-American trust law and Civil law countries and regions related to both trust law in effect on the Trust , the common attitude. Just contact the relevant content, and from a more macroscopic point of view to be examined can be found, although four of trust law in the United States trust law, only the above (3 provisions of the trust is invalid, the other three trust law to make such provisions were not, but they are, after all, are the provisions of this trust is revocable trust (see the second part of this point, because of an invalid trust and revocable trust are there are flaws in the effectiveness of the Trust and revocable trust will be invalid due to be revoked, pursuant to which trust law that the four effects on the attitude of this trust, the basic point in the line, although only <<Mauritius Trust Law "> will be (4, ( 5) The kinds of regulations to be invalid trust law trust other three were not making such a requirement, but does not follow the law that are unique to this provision, because the provisions of this same or similar trust law in the United Kingdom and the United States in the Trust Law There are, after all (see the third part of this point. As for the method (6 also provides for the trust is invalid for the purely from various countries and regions in common trust law, as determined by the principal of the trust set up one of the elements of qualified Elements of a spirit, it is invalid from the Trust on the angle of the provisions of this rule is not strictly speaking the law in regard to other relevant countries and regions in terms of the trust law has the characteristics of the expression. However, "Korean Trust Law >> and China Taiwan region "Trust Law," respectively (7) species and (7, (8 provisions of the trust is invalid, the provisions of trust law in the United States and <<Mauritius Trust Law "> does not exist in both shows It is actually in front of two trust law that has the characteristics of the expression.

China <<Trust Law "> Article 11 made the following provisions of the trust is invalid:" one of the following circumstances, the trust invalid: (1 purposes of the trust violates laws, administrative regulations or harm the public interest, (2 trust property can not be determined , (3 principal provisions of this Law of illegal property or the property can not set up a trust to establish a trust, (4 exclusively for the purpose of debt collection proceedings or the establishment of a trust, (5 beneficiary or beneficiaries can not be determined, (6 laws and administrative regulations in other cases. "This provision can be seen from the first, the law will for the four above-mentioned provisions of trust law were invalid trust in the eight (1, (2, (4, (7 also provides an invalid trust, this The Act embodies point exists in the corresponding provisions of the Trust Law transplant or follow the example of the difference, and second, the Act also provides that the Trust will be the following four types of trust is invalid: (a trust the trust property can not be determined, (2 Trust the trust property does not apply to law, (3 debt collection Trust, ⑥ (4 with addition of this Law other than the case law of the trust invalid. Although the trust is invalid on the four above-mentioned provisions of the Trust's trust law does not exist in four However, it can look a little comparison and found that the method will be one (1 species is clearly defined as invalid by the British Trust the profound impact of trust law (see the third part of this point, the (2, (4 provisions Invalid Trust is purely from the national, regional trust law principles of common law that established a trust shall abide by a spirit of the principles of the law, it is invalid from the trust, the provisions on the point of view that these three provisions are not extra-territorial law in regard to the terms of the trust law has the characteristics of the embodiment, but on the (3 is invalid provisions of the trust unique to the law, this provision can be seen only with the characteristics of the law the embodiment.

Second, the trust claims on the fraud victims

Injury claims fraud refers to the damage to the trust on the settlement of claims for the consequences of the establishment of the trust. It includes both broad and narrow: the narrow sense refers only to fraud victims Trust claims to defraud his creditors by the client for the purpose of the trust established , generalized claims fraud victims, including the Trust except to defraud his creditors by the client for the purpose of the trust set up also included any of the other established by the client for other purposes but still lines to undermine the claims of its creditors consequences for its settlement of a trust set up.

Mentioned in the first part of this four trust law claims were victims of fraud made the effectiveness of the provisions of the Trust: Trust Law, the relevant provisions of the United States recorded in the <"U.S. Trust Restatement>" (2): the Article 63 of its Paragraph 1 states: "The principal purpose of a trust if it is to defraud creditors or others, the trust invalid, but the provisions of paragraph 2, except as otherwise provided." <<Mauritius Trust Law "> Article 11, paragraph 3 : "If the Trust by the client to defraud his creditors for the purpose of establishment of the trust property is transferred to the trustee, the court may revoke the declaration of trust." <<Korean Trust Law "> article 8, paragraph 1: "The creditors of the debtor that would be damaging to the case of a trust set up, even if the trustee is in good faith, the creditor can also press the Civil Code Article 406, paragraph 1, be withdrawn and restitution." ⑦ China Taiwan region "Trust Law" Article 6, paragraph 1, states: "The trust acts detrimental to creditors, creditors may request revocation." and "revocable trust claims act" that is, looking from the legal substance "claims revocable trust." relatively little has can be found: first, the United States trust law and the <<Mauritius Trust Law "> damage claims fraud in the narrow sense of trust for the victims of credit fraud trust," <Korea Trust Law "> and China Taiwan region" Trust Law "in the fraud victims Trust claims damage claims fraud was generalized trust, and the second, the United States the principle of trust law trust will be characterized as fraud victims claim the trust is invalid, the other three trust laws will be characterized as such a trust revocable trust. Despite these differences, But four in common trust law is that victims of fraud claims in their view there is a trust of which the effectiveness of defect (void or voidable by the trustee in this trust is not set up well or ill when this point vary difference: <<Korea Trust Law "> has been clear that this point, although the other three did not do so for the trust law, but they will be null and void the provisions of this trust can be withdrawn at the same time or are not clearly defined, after all," but trustee, except in good faith. "

However, the principal victims of credit fraud when the trust is established for the designated beneficiary is, after all, they may have good intentions. Harm to the beneficiary in good faith on the fraud claims of the effectiveness of the trust, trust law, in addition to the four <<Mauritius Trust Law "> outside of the other three have done the answer. the United States trust law to answer that <" American Restatement of Trust "(version 2, paragraph 2, Article 63, paragraph 1 of its provisions would be null and void this trust basis states: "Trust is the third person beneficiary if the trust and the establishment of the fraud when the principal purpose of the beneficiary without the knowledge, the beneficiary of the trust to enforce the right to request from the request by the fraudster so for the right to stop him, except. "<<Korean Trust Law"> paragraph 2 of article 8, paragraph 1 of its provisions to such trust can be withdrawn by the creditors on the basis provides: "The revocation of the preceding paragraph and restitution, does not affect the beneficiary's vested interests. However, when the beneficiary not yet reached the maturity to accept the repayment of debt, or the beneficiary be known at the time of their interests harmful to the creditor or by gross negligence, I do not know the situation, not this limit. "China Taiwan region" Trust Law "paragraph 2 of Article 6, paragraph 1, are the provisions of this trust can be withdrawn by the creditors on the basis that:" in the preceding paragraph revoked, without prejudice to the beneficiary has been made interests. but not the interests of the beneficiary to obtain or obtaining benefits of the session when the satisfaction of knowing or ought to know that hazardous and claims, unless. "Trust Law in the United States appears to be seen, as long as the beneficiary of good faith is fraud harm principle, already claims the trust is no longer a valid trust, but trust is valid, it is well known and effective only when the trust was enforceable and thus their right to request the benefit of its enforcement personnel. And look at the other two trust law to even the beneficiaries of good faith on damage claims fraud is still a revocable trust to the trust, because according to them the spirit of the foregoing, even if the beneficiary has the goodwill of this trust can be revoked by request of the creditors, but in the The trust is withdrawn when the beneficiary in the trust made before benefits can be not be returned.

Damage claims of fraud and declared the trust declared void by the court to make the revocation of all. The United States trust law will be judged as invalid this trust but the trust does not provide creditors requested the court to declare the trust invalid time. <<Mauritius Trust Law " > Article 11, paragraph 3, and China Taiwan region "Trust Law" section 6 of this trust will be characterized as a trust can be revoked and they are also on the basis of this qualitative, relating to the revocation of the creditors have the right to except exclusion provisions made during the period: the former Article 11, paragraph 4, states: "in front of a basis of action against the trustee of the trust from the trust property if it is to be transferred to the person more than two years after the date of filed, the court should not accept this action. "Article 7 which states:" Right before the revocation, withdrawal from the creditor has reason to know from the time of the year extinguished if not exercised. who own more than a decade since too, but also the same. "and <<Korea Trust Law"> Although this trust will be characterized as revocable trust but it has not relating to the revocation of the creditors have the right to make provision for scheduled period.

Trust Law, the Trust will be identified as fraud victims claim the existence of flaws in the effectiveness of the Trust, aims to protect the interests of the client's creditors. One will be all to the detriment to the settlement of claims for the consequences of the establishment of the fraud provisions of the trust are Trust Law Trust damage claims in the interests of creditors to the extent of protection provided is clearly higher than one to only a certain kind of damage to the settlement of claims for the consequences of the establishment of the trust provisions of the Trust claims fraud victims trust law. visible relative to the U.S. trust law and the <<Mauritius Trust Law "> debt held by the trust the narrow attitude of fraud in terms of harm," <Korea Trust Law "> and China Taiwan region" Trust Law "held by the victims of generalized fraud claims is more worthy of the trust's attitude. But the United States trust law, after all, the Trust will be classified as fraud victims claim invalid while the other three trust trust laws will be characterized as such a trust revocable trust. invalid trust features in its fixed invalid, it is Trust in the fraud victims were identified as invalid claims trust case, as long as the trust is any interested party to sue is not invalid even if the lawsuit complaint, the court may declare it are invalid, even if the person is not the principal creditors or the creditor was unaware of the existence of the trust, the court should declare it null and void and inform the creditor, the characteristics of trust can be revoked in its revocation was due to be invalid, so the Trust was in the fraud claims victims characterized as a revocable trust case, only when the client's creditors filed before the Court of Appeal revoked it can be withdrawn and other interested parties in the dispute because of the operation of the case proceedings, the court can not Trust can be revoked without informing the creditor about the situation. Can be seen on the protection of the interests of the creditors of the effect of the foregoing United States trust law is clearly qualitatively superior to the other three to the foregoing qualitative trust law. In the United States trust law will be the beneficiary of the fraud victims have a good faith provisions of the trust claims Trust is an effective and desirable. because of damage claims in the fraud case, the trust was established, even if the beneficiary has the goodwill, trust law should focus on protecting the interests of the client's creditors. aforementioned provisions of the Act is not only with this violation, and it will cause such a trust because the beneficiary has a good tends to legitimize the results of its implementation. shows relative or <<Korea Trust Law "> and China Taiwan region" Trust Law "will still be due to The beneficiary has a good faith claim fraud victims trust revocable trust as a result of its violation does not exist with the implementation of the above results, and thus appears preferable. According to national, regional law court to declare the common practice of any civil action or civil relationships are not valid without time limit. And reasonable point of view from the court to declare the civil relations of any civil or revocation of the time limit should be. This point of departure to to the scrutiny, that although the United States trust law does not provide for victims in the fraud claims was the establishment of the trust principal creditors requested the court to declare the trust invalid time, and <<Mauritius Trust Law "> and China Taiwan region" Trust Law "is provides for the establishment of the trust is entitled for the creditors the right to revoke scheduled period, but the difference between the existence of a Trust Law in front of and behind the two in terms of trust law which one is better but it is far from .

China <<Trust Law "> also the effectiveness of fraud victims trust claims made provisions and related matters, and its Article 12, paragraph 1, states:" The principal interest of the establishment of trust to the detriment of its creditors, the creditors have the right to apply to court for revocation of the trust. "Paragraph 2 states:" People's Court revoked the trust in accordance with the preceding paragraph, does not affect the trust that has been made in good faith the interests of the beneficiary. "Paragraph 3 provides that:" this right to apply the first paragraph, since creditors know or ought to know the reasons for withdrawal are not exercised within one year, attributed to destroy. "visible from the provision: first, there is fraud in the law damage claims in trust for the victims of credit fraud generalized trust, and second, the law This trust will be characterized as revocable trusts, the third, the law will be the beneficiary of this trust with good faith as a revocable trust is still the fourth, also against the law relating to such trust for the creditors enjoy the right of revocation provides scheduled period. showing that the method of the foregoing is purely to follow <<Korea Trust Law "> and China Taiwan region" Trust Law "in the corresponding provisions of the product. so if it considers that the provisions of Department of the latter two corresponding provisions of trust law trust law relative to the U.S. with the same provisions of the merits and shortcomings be absorbed into one, this view does not seem to lose their accuracy.

Third, uncertainty about the terms of the trust important matters

Terms of the so-called important matters here is the existence of uncertain behavior of the provisions of the trust important matters the terms of the trust in the content is not clear, unclear, contradictory or non-specific, important issues of trust is uncertain terms refers to the uncertainty terms of its articles on important issues of trust. Uncertain whether the beneficiary of the trust, the trust property or trust uncertainty uncertainty other important matters are important matters of the trust are uncertain terms the scope of the trust.

Important matters will be provided in the Trust uncertain terms the trust is invalid by the UK's first Trust Law, the law will be the subject matter of uncertainty with the object of uncertainty Trust Trust Trust invalid provisions, including the subject matter of the trust property trust uncertainty uncertainty the content of the trust and beneficiary of the trust both uncertain, the object was only beneficiary of the trust uncertainty uncertainty of a trust. ⑧ United States law does not trust important matters will be provided in the Trust uncertain terms of the trust is invalid, but the provisions of this kind of trust does not have the power to enforce the trust. <"American Trust Restatement>" (2nd edition, 65-B provides that: "the terms of the trust or trusts included if not sure, or the terms of the trust unenforceable. "uncertain, in fact, the so-called trust and trust can only be by the terms of the uncertainty embodied in important matters, and the so-called trust unenforceable in fact it is important that the Trust issues related to non-mandatory provisions execution, showing that this provision is to identify important issues in fact uncertain terms of the trust or do not have entirely or partially unenforceable does not have enforcement power, and in accordance with the spirit of this provision, the terms of any uncertainty as an important matter Trust are not available or entirely or partly unenforceable does not have enforcement power. Despite the "invalid trust" and "do not have the power to enforce the trust" in trust law are different concepts, but the trust is invalid and does not have the force execution of the trust is all there are flaws in the effectiveness of the trust, and ineffective enforcement of Trust does not have power, on this point it does not have the power to enforce the trust is no different. accordingly will not have a real reason enforceable trust invalid as a special trust.

Terms of the important issues related to the uncertain provision to be invalid Trust Trust Trust Law in the UK reflect the following requirements: the client should be avoided in the establishment of a trust so that important matters related to terms of uncertainty. British scholar Ivo than that: "In order to the trustee in the proper performance of obligations to minimize the opportunities for dispute and litigation, in order to make the case required the court to enforce the trust, express trust in the establishment, the client must ensure that its declaration on the establishment of trust is clear, unambiguous terms expressed. "⑨ can be said that the scholars of this paper reveals more accurately the foregoing requirements of trust law in the United Kingdom legislative motive. As for the reasonableness of this requirement is self-evident: because the Terms of uncertainty on important matters of trust is concerned, it not only the actual operation of the trustee, the court can not enforce it. from trust law, this requirement will undoubtedly led to a certain extent, the principal acts of the existence of the Trust important issues in terms of relevant contents carefully designed, resulting in these terms with certainty, so as trustee of the Trust's operations and the enforcement of the court to create conditions for trust. Not only that, the British Trust Law also has the effect of the foregoing Important provisions of the courts of uncertainty due to the operation of the trust disputes provides a solution: the important issues related to the uncertain terms of the Trust Trust is recognized as invalid, dismissed the trust on the interested party's request to enforce the trust and in accordance with this Law, the legal consequences of invalid provisions of the Trust to deal with, and this program is indeed the Court must deal with this trust disputes. can see the British Trust Law will be important issues related to the uncertain terms of the trust provisions of the trust is invalid, This is indeed a realistic and practical value of the system design.

<<Mauritius Trust Law "> Article 12, paragraph 2, the beneficiary of a trust with the provisions of uncertainty can not be sure that the trust provisions to enforce the trust is invalid, as a result the Trust because of its uncertain terms not to enforce mm No doubt the inevitable with the important matters relating to terms of the Trust, showing that it can not enforce uncertain terms the trust is an important matter of fact, the uncertain terms of the trust, and it also included in the scope of the terms of any uncertainty as an important matter Trust. the important issues of trust uncertain terms the provisions of the trust is invalid, especially the uncertainty of the trust beneficiaries to be invalid the provisions of the trust alone, which embodies the law in the UK trust law to follow the corresponding provisions. any kind of important Trust issues are included in terms of uncertain scope of the trust is invalid the law embodies the trust law by the United States the profound impact of the corresponding provisions. However, the law will be important issues in terms of the trust provisions of uncertainty, while the trust is invalid, then beneficiary of the trust of uncertainty is clearly a separate trust to be invalid provisions are not necessary, because of important matters in terms of uncertain scope of the Trust has an important matter of any provisions of the trust are included uncertainty, while the beneficiary uncertain Important provisions of the trust was a trust uncertain. as the British Trust Law provisions on the important issues of uncertainty the provisions of the trust the trust is invalid as a pragmatic and practical value of the system design, identical in content with this or similar as the result of the courts is indeed a result of the operation of this trust necessary for disputes, which should exist in civil law countries and regions concerned in the trust law, so the above <<Mauritius Trust Law, "the law follow this rule should be affirmed, and this trust law the relevant provisions of civil law is also an important matter because the terms of any uncertainty as invalid the provisions of the Trust are the Trust to a breakthrough in the scope of this provision of the Act, In particular, it can be seen to be commended. In contrast <<Korea Trust Law "> and China Taiwan region" Trust Law, "an important matter on the terms of any trust to be invalid uncertain provisions of the Trust Trust Law in these two do not exist . However, in Korea and Taiwan, China's social and economic life is, after all, a variety of very important matters may be uncertain terms of the trust, the trust exists in these cases concerning the operation of their disputes should be how to treatment, in these two can not find the basis in trust law and programs, we can see no uncertain terms will be important issues to be invalid the provisions of the trust the trust is indeed one of these two defects in trust law. In Taiwan, China law experts have scholars took note of this point, Lai source river, Chih-Cheng Wang pointed out: on the beneficiary "trust in private interest should be established at the time the trust was established or already established, or of trust can not be effective". ⑩ Jer-Shenq Shieh pointed out: "private interest While the beneficiaries of the trust set up when not in the trust that exists, but must be available to determine the trust to be effective. "(11) In addition, the scholars also pointed out:" the subject of legal action (the content must be determined or may determine otherwise, the law void and of trust is a legal act, the subject must also be determined or may determine otherwise, the Trust null and void. "(12) Since the trust is not effective, or ineffective behavior will lead to the establishment of a trust which they are not effective, or ineffective. This shows that this three scholars advocated here is actually the beneficiary of the trust and content uncertainty uncertainty does not effect the trust qualified as a trust or the trust is invalid, this claim can be seen as their China Taiwan region "Trust Law" indirect criticism of the foregoing defects.

China <<Trust Law "> section 11 trust property to the trust and beneficiaries uncertain uncertain as invalid the provisions of the Trust Trust, which also embodies the law in the UK trust law to follow the corresponding provisions, and the law and important issues without any kind of uncertain terms of the trust provisions of the trust is invalid, it is different at this point is not and "The <Mauritius Trust Law">. but read this provision can be found above the two terms are not important issues Trust were identified as "trust the trust property can not be determined" and "trust beneficiaries can not be determined", which indicates that the method seems only exist in the trust property of trust beneficiary of the terms and provisions of uncertainty Trust is not able to identify the invalid, only the contract can not be explained through the application of the system or other system of interpretation of the meaning of that provision to make these two changes identified by the uncertainty, it can be recognized as invalid the relevant trust. visible The Act provides for the trust property is not a valid trust and the beneficiaries of the trust uncertainty uncertainty Mauritius Trust and the British trust law and is recognized as invalid provisions or both the Trust Trust is slightly different, the different requirements of the Act by the uncertain terms of the previous explanation for the above means that the system dictates, and this requirement is that the law embodies two important matters of the foregoing provisions of uncertainty cautious about the validity of the trust, this attitude is commendable.

Fourth, with regard to debt collection litigation trust and the trust

Litigation Trust is the trustee of the principal place for the purpose of proceedings to establish their trust, debt collection for the Trust refers to the principal debtor to the trustee instead of your demand for settlement of its trust established for the purpose of the debt. Litigation Trust General This creates: the principal beneficiaries for a particular property and the property rights needed by the particular property of the obligor to meet through the payment, but they do not come forward to prosecute the principal obligation, but the property through the transfer of trust behavior or entrusted to the trustee, (13) and provisions in the act by the trustee in its own name to prosecute the proceedings by obligors and obtain the property from which to deliver to the client or by their designated people; the trustee to accept the transfer of property rights, or delegate, and act in accordance with the requirements of the Trust to implement the legal action. Because the case is the nature of the trust after the establishment of the Trustee at its principal place of litigation in the courts is to require only that payment obligation of the property to its decisions for the content of the proceedings that payment claim, which would enable the trust set up in this transfer by the client or delegated to the trustee only in the nature of property rights claims. Visible action is actually a special kind of trust, the principal purpose to achieve through litigation debt collection by the Trust. (14)

<<Korea Trust Law "> 7 and China Taiwan region" Trust Law "Article 5 of the trust provisions are null and void the proceedings to the trust. Although the United States a trust law, and any other common law countries and regions were not Trust Law will be null and void the provisions of the trust litigation trust, but not to the Trust pursuant to the provisions of the proceedings that is not a valid trust for the creation of two trust law. because the proceedings concerning the establishment of the trust provisions prohibit the existence of "the Japanese Trust Law"> in the provisions of Article 11 of its title is "litigation trust for the purpose of the prohibition." which states: "Trust in the implementation, not to implement the main purpose of litigation." This provision is applicable in Japan, resulting in litigation trust become invalid trust. (15) shows that the above two provisions of trust law as invalid the proceedings to the Trust and the Trust <"The Japanese Trust Law"> in the foregoing provisions.

<"The Japanese Trust Law"> lawsuit against the establishment of the trust has its own unique social background. The law introduced in Japan during that time represented by counsel in the relevant legal principles and regulations, only the lawyers are eligible to engage in litigation, including debt collection for the content of litigation, even though the parties may sue the respondent in person, but as long as its intention to seek legal representation must be carried out by a lawyer. But there is in society, but some lawyers do not have the status of "poor quality of the legal layman and other figures such as pettifogging jumping overbearing persons (including the original Translation, and so "jumping domineering person" itself is the original character of the two groups - the author note "designed to help people collect debts for industry and for various reasons resulting in a number of creditors may choose to circumvent the law agency principles, the way through the establishment of trust litigation entrusted to these people for their debts to creditors as they are charged by the debtor and the debtor after the successful delivery to meet the claims of their property should get some in the net and then transferred to the creditors, the order of the legal services market will be so because these people act destroyed. (16) in this society into the context of the provisions of the Act is to prohibit the establishment of proceedings in the Trust for the content of Article 11, its purpose is clearly relevant. by Japanese scholars of induction of new wells honest, for the purpose of enacting a law that Japanese law scholars who have raised three views: one is to prevent creditors to avoid litigation counsel principles of trust, and the second is to prevent the front those mentioned in the trust for the use of litigation for the content of debt collection litigation activities, the third is to prevent the trust from the proceedings due to abuse of the proceedings occurred. (17) However, since the <"The Japanese Trust Law," enacted since the Japanese society After all, is constantly changing, to the Second World War, when the introduction of the Act has simply ceased to exist the social background, which would make the value of 11 scholars in the law of the land constantly being questioned. A is proposed that the distance is relatively close to the present and very influential through that that there is no need to establish all the litigation against the trust, and only need to prohibit the establishment of violation of public order and morals of the litigation trust and prohibit such trust is entirely possible to <<Japanese Civil Code "as the basis for Article 90. (18) The main reason is not only the changing times, more importantly, is based on the current constitution, the right of citizens to accept the administration of justice, resulting in their enjoyment of the protection of their basic human rights to obtain essential material rights, so the adoption proceedings to protect their rights can not be considered inappropriate. and since the law allows creditors to achieve through a lawyer claims agent, then the corresponding action will be allowed to by the Trust to achieve this right, but The case for violation of public order and morals of the excluded. (19) shows that in fact this is that the provision in the "" The Japanese Trust Law "> in the continued existence no longer necessary. to contact the current situation related to Japanese society as well as common people in society agreed to examine the relevant values ​​can be said that this has obvious rationality and persuasive. In fact, as early as 1953, Hiroshima, Japan, the High Court ruling would have been an action by the Trust and the Trust recognized as a valid case in Japan far-reaching effects: a local company to be in arrears of their wages and refusal to grant, in order to achieve effective resistance to the company and successfully in the process to recover wages, many employees through the establishment of trust litigation the company has its wage claims transferred to the company union and asked the union to discuss the company through litigation to achieve their goals and then pay the back wages will be transferred to them. union wage claims in the transferee to the company after the defendant filed a "package" of wage payment requests litigation, trust litigation in the defense of companies and that those employees and unions that exist between the assignment of claims and wages for the content of litigation proceedings entrusted to the Trust for the Trust Law section 11 prohibits the establishment, which要求确认该项信托无效.广岛高等法院认为,尽管那些员工与工会之间存在着形式上的诉讼信托,作为受托人的工会却并非为了自己的利益而完全是为了那些员工的利益实施诉讼行为且其通过诉讼程序对有关的工资债权的行使属于对人权利的正当行使,故该项诉讼信托并未违反信托法第11条的立法目的.基于这一认识,该法院判决确认该项诉讼信托有效并驳回该公司的诉讼信托抗辩.(20) 这一判决表明广岛高等法院也认为完全没有必要禁止设立所有的诉讼信托且认为<<日本信托法>>第11条所具有的态度不合理,但该法院作为司法机关对于本案在前述认识支配下居然拒绝适用此条来进行判决,此点耐人寻味且发人深思,如果说它表明在该法院看来完全可以将此条"束之高阁",这大概并不为过.

<<韩国信托法>>与中国台湾地区"信托法"的出台时间比<<日本信托法>>要分别晚30余年与70余年,尤其重要的是,上述<<日本信托法>>出台时的社会背景在另外两部信托法出台当时的韩国与我国台湾地区均根本不存在,且上述在日本法学界流行的通说之理由中的价值观念在当时当地也是作为主流价值观念被推崇,显然,在这种情形下禁止设立诉讼信托对这两部信托法而言已经属毫无必要.这便使它们通过对<<日本信托法>>的变相抄袭将诉讼信托规定为无效信托不仅显得毫无必要,而且还显得过于盲目与非常不合时宜.在我国台湾地区法学界已有学者对中国台湾地区"信托法"第5条关于诉讼信托为无效信托的规定持批评态度,赖源河、王志诚认为"诉讼信托所应禁止者应限于利用诉讼信托而获取不当利益者",且这一看法还系以上述在日本法学界流行的通说之理由为其理由,(21) 方嘉麟则以"唯法律潮流既走向鼓励团体诉讼"为理由指出此条关于诉讼信托为无效信托的规定"究有无存在必要颇值推敲",(22) 此点表明其实际上认为应当将此条从该法中删除.这一态度在该地区法学界具有一定的代表性,至于它的合理性则实属显而易见.

中国<<信托法>>第11条将诉讼信托与讨债信托并列规定为无效信托,这实际上表明在该法看来包括诉讼信托在内的任何一种讨债信托均属于无效信托.将诉讼信托规定为无效信托说到底也体现着该法对<<日本信托法>>中的相应规定的变相抄袭,而将除诉讼信托外的其他各种讨债信托即非诉讼信托性质的讨债信托也规定为无效信托则体现着该法相对于<<日本信托法>>、<<韩国信托法>>与中国台湾地区"信托法"而言所具有的创新与特色.然而,仅从两者出台的社会背景根本不同以及所谓律师代理原则在我国法律中亦属并不存在的角度看,(23) 便可以认为中国<<信托法>>通过对<<日本信托法>>的变相抄袭将诉讼信托规定为无效信托显得毫无必要且过于盲目,至于该法将非诉讼信托性质的讨债信托也规定为无效信托则不仅亦属毫无必要而且还实属不可思议,由于这类讨债信托对其受托人而言实际上仅意味着"受人之托,代人讨债(当然是通过诉讼以外的途径——笔者注",故从其运作结果的角度看,它与以讨债为内容的非诉讼代理性质的委托代理并无实质区别,我国法律一向并不禁止以讨债为内容的非诉讼代理性质的委托代理,一向允许包括律师在内的任何完全民事行为能力人作为代理人通过诉讼以外的途径代替债权人向债务人行使债权,甚至还允许设立具有法人资格的、以专门通过诉讼以外的途径代理债权人追讨债务为其经营范围的讨债公司,既然如此,该法便理应允许设立这类讨债信托.由此分析可以认为,该法所具有的前述创新与特色实际上并不可取.

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五、关于受益人不合格的信托

受益人不合格的信托是指由委托人以特定财产权为信托财产并以依法不能够享有该项财产权的人为其受益人而设立的信托.

中国台湾地区"信托法"第5条将受益人不合格的信托规定为无效信托.这一规定系由关于该法立法草案的第6条演变而来:该条规定:"依法不得享有特定财产权的人,不得为受益人而享有与该权利之同一利益."在关于此条的立法理由中曾举下例以作说明:外国人依该地区的土地法不能够享有土地所有权从而亦不能够作为以土地所有权为信托财产的信托的受益人而享受信托利益.(24) 联系此两条的精神来加以审视,可以认为受益人不合格的信托在内容上具体体现为:某人因另一人依法并无享有特定财产权的资格从而并不能够将该项财产权转移给后者享有,但前者却以该项财产权为信托财产设立信托并将后者指定为受益人并由此致使该项财产权经受托人管理或处理所生信托利益归该人享受,显然,前者设立这种信托无可争议地具有规避法律的目的,而规避法律的目的则为非法目的的一种,可见这种信托实为目的违反法律的信托的一种.

美国信托法实际上也将受益人不合格的信托视为无效信托,该法虽然并没有将受益人不合格的信托专门规定为无效信托,但其毕竟已笼统地将目的违反法律的信托规定为无效信托,且此点由<<美国信托法重述>>(第3版第29条中的有关内容所体现,而受益人不合格的信托则为目的违反法律的信托的一种,可见关于这种信托为无效信托在该法上显然属于确定无疑.尽管如此,由于一项关于受益人不合格的信托为无效信托的单独规定在美国信托法中并不存在,故尽管该法也将这种信托视为无效信托,但不能够据此认为中国台湾地区"信托法"关于这种信托为无效信托的规定系对该法进行仿效的产物.

当然,将受益人不合格的信托专门规定为无效信托也并不是中国台湾地区"信托法"的创造,因为关于禁止设立受益人不合格的信托的规定早已存在于<<日本信托法>>中,其第10条的条文标题即为"脱法信托的禁止".该条规定:"依法令不能享有某项财产权者,不得作为受益人享受与该项财产权的享有者同样的利益." 在日本正是此条的适用致使受益人不合格的信托成为脱法信托从而被定性为无效信托.(25) 应当指出,<<日本信托法>>并未像美国信托法那样笼统地将目的违反法律的信托规定为无效信托,在这种情形下该法通过专门规定禁止设立脱法信托单独地将受益人不合格的信托定性为无效信托,这从立法技术角度看却并无瑕疵.然而,中国台湾地区"信托法"第5条却毕竟像美国信托法那样也笼统地将目的违反法律的信托规定为无效信托,在已有此规定情形下该法还另行将受益人不合格的信托再单独地规定为无效信托,这从立法技术角度看却显然存在瑕疵:此项单独规定因已为前面那一项笼统性规定所包容故它实际上体现着对存在于此项规定中的某项内容的重复.我国台湾地区学者方嘉麟已经注意到这一点,他在评论存在于中国台湾地区"信托法"中的此项单独规定时指出该规定即"受益人为不得受让特定财产权人规定形同赘文",(26) 从上述关于该规定的立法理由的举例出发,为这一看法所设计的理由是:"倘信托行为'目的'违反强行规定行为即属无效,则在上例该外国人'目的'显在迂迴规避我土地法规定企图借由信托达成土地法所不许之效果信托无效殆无疑义,则上开就受益人资格特别规定之条文即失实质意义."(27) 显然,该学者在这里实际上是认为,在该法已笼统地将目的违反法律的信托规定为无效信托的情形下再专门将受益人不合格的信托单独地规定为无效信托已属没有必要.这一看法的合理性则属毋庸置疑.

中国<<信托法>>与<<毛里求斯信托法>>均未将受益人不合格的信托专门规定为无效信托,但前者第11条与后者第12条第2款毕竟也笼统地将目的违反法律的信托规定为无效信托,由于受益人不合格的信托为目的违反法律的信托的一种,可见关于这种信托为无效信托在这两部信托法上显然也属于确定无疑.应当指出,中国<<信托法>>的制定深受中国台湾地区"信托法"的影响,但在将受益人不合格的信托确认为无效信托这一点上它却并未仿效后面这部信托法,而是仿效美国信托法,正是这一仿效使它避免了后面这部信托法在立法技术上存在的上述瑕疵,此点的确值得肯定.

六、关于无效信托的法律后果

这里所称的无效信托的法律后果特指当信托财产在信托被确认无效(包括因被撤销而归于无效之前便已经被转移给受托人占有的情形下由该项确认无效所导致的法律后果.

美国信托法在原则上将归复信托的产生规定为无效信托的法律后果,<<美国信托法重述>>(第2版第411条是关于无效信托的一般规定,此条规定:"财产所有人无偿地转移财产并且适当地明示了关于受让人应当以信托方式持有该项财产的意图,但该项信托无效,则产生一项归复信托由该受让人持有该项财产并以该转让人或者其遗产为受益人,除非该转让人已适当地明示了关于不成立归复信托的意图."

<<毛里求斯信托法>>将返还财产规定为无效信托的法律后果:其第13条规定:"在信托无效情形下,由受托人占有的任何信托财产都应当按照法院根据本法第12 条第6款作出的命令全部移交给委托人,如果委托人已经死亡,该项财产应当被作为委托人在死亡时所拥有的财产的一部分移交给其继承人."由于信托财产系由委托人在无效信托设立时转移给受托人占有,可见此条中的"将信托财产移交给委托人"实际上也就是"将信托财产返还给委托人".<<韩国信托法>>与中国台湾地区 "信托法"对于无效信托的法律后果均并未作出规定,但在韩国与我国台湾地区均制定有民法典,且这两部信托法均并未明文规定排斥适用民法典来对信托进行规制.我国台湾地区学者方嘉麟指出:"无效信托的法律效果取决于信托法与民法(指民法典——笔者注",(28) 且其在确认信托无效在法律上等于自始不成立的基础上进而指出:"倘信托自始不成立,则原则上应回复至信托发生前的原状,故若委托人已将信托财产转予受托人,受托人自应将该财产转回予委托人."(29) 该学者的这一看法,因系从信托法与民法典的关系角度立论,从而既可以被用以说明我国台湾地区的无效信托的法律后果,又可以被用以说明韩国的无效信托的法律后果.具体地讲,从韩国与我国台湾地区民法的角度看,导致信托设立的信托行为在性质上属于法律行为,且从其信托法的角度看无效信托还系由无效信托行为所导致产生,由于依该国与该地区的民法观念,民法典为民事普通法,信托法为民事特别法,在其信托法并未明令排斥适用情形下,在该国与该地区对无效信托的法律后果应当适用其民法典的有关规定来确定.这一法律适用具体说来是:如果在民法典中存在关于无效法律行为之法律后果的专门规定便应当适用这一规定,如果民法典并无这一规定则应当适用关于不当得利的一般规定.在中国台湾地区"民法典"中存在关于无效法律行为之法律后果的专门规定,其第113条规定:"无效法律行为之当事人,于行为当时知其无效,或可得而知者,应负回复原状或损害赔偿之责任."此条中的"回复原状"指的是"回复到未为履行行为之状态",(30) 可见它恰恰是以返还财产为内容.在<<韩国民法典>>中不存在关于无效法律行为之法律后果的专门规定,但该法第741条却为关于不当得利的一般规定,且依这一规定的精神,任何人对于为其所取得且对其而言属于不当得利的财产均应当予以返还,而当事人因无效法律行为取得的财产对其而言因无法律上原因从而属于不当得利属确定无疑.正是对前述民法典有关规定的适用,致使在韩国与我国台湾地区,返还财产也同样成为无效信托的法律后果.由于<<韩国信托法>>与中国台湾地区 "信托法"并未明令对这一规定排斥适用,这恰恰表明它们与<<毛里求斯信托法>>一样也是将返还财产视为无效信托的法律后果.

应当指出,美国信托法与另外三部大陆法系信托法在对关于无效信托之法律后果方面的差异仅仅是表面上的.美国信托法上的归复信托是指在转让人虽然已经将特定财产转移给受让人占有,但前者却存在可因推定而得知的关于其并无使后者享有对该项财产的受益权的意图的情形下由法律在他们之间强制设立的信托.(31) 就任何信托而言,其委托人同时也是财产所有人兼财产转让人,其受托人则同时也是财产受让人.故就因无效信托所导致产生的归复信托而言,依<<美国信托法重述>>(第2版第411条的精神其仍然系以该无效信托的受托人为受托人但却系以该无效信托的委托人为受益人,不仅如此,由于导致无效信托设立的信托行为必然为无效行为,从而它并不能够导致关于信托财产的法律所有权被转移给该受托人享有,故在这种归复信托产生后只要该委托人即受益人并未通过另行实施其他行为将该所有权转移给该受托人享有,在这种情形下该所有权便仍然由该委托人即受益人享有.<<美国信托法重述>>(第2版第410条规定:"当信托财产的法律所有权与全部受益权归属于同一人时,归复信托终止."在此条适用情形下,在信托被确认无效后只要委托人并未通过另行实施其他行为将关于信托财产的法律所有权转移给受托人享有,则由该项无效信托导致产生的归复信托即告终止.在美国对由归复信托终止所导致的信托财产归属适用其信托法关于信托终止时信托财产归属的一段规定来解决.<<美国信托法重述>>(第2版第345条即为此项一般规定,此条规定:"信托终止时,受托人有义务将信托财产权转移给对该项财产享有受益权的人,如果受托人只是占有信托财产而并不享有关于该项财产的所有权,那么他应当将信托财产转移给对该项财产享有受益权的人占有."由于由无效信托所导致产生的归复信托为归复信托的一种,故此条自然能够适用于由这种归复信托终止所导致的信托财产归属,再由于这种归复信托系以委托人为受益人即对信托财产享有受益权的人,故在此条适用情形下在其终止时受托人便应当将信托财产转移给委托人占有,然而在这里,受托人将信托财产转移给委托人占有,从本质上看也就是将该项财产返还给委托人.由上述可见,美国信托法在实际上也是将返还财产确认为无效信托的法律结果,在此点上它与那三部大陆法系信托法并无一致.

作为民事特别法的中国<<信托法>>对于无效信托的法律后果也并未作出规定.但在我国却存在作为民事普通法的<<民法通则>>,该法第61条第1款前段规定:"民事行为被确认为无效或者被撤销后,当事人因该行为取得的财产,应当返还给受损失的一方."在前面一部法律并未明令排斥适用情形下此段显然能够适用于对无效信托的处理,正是这一适用使在我国返还财产也成为无效信托的法律后果.此点表明该法在实际上也是将返还财产视为无效信托的法律后果,在这一方面它的态度与上述四部域外信托法的态度相同.





Notes:
① 无效信托包括由信托法专门规定为无效的无效信托与因适用其他民事法律关于无效法律行为或曰无效民事行为(无效合同、无效遗嘱或者其他无效法律行为的规定而归于无效的无效信托两类,其中只有前面一类才属于带有为信托法所铸造的个性的无效信托且只有对它才有可能从信托比较法角度出发来进行研究.

② 存在于大陆法系国家与地区的信托单行法除这里提到的五部外还包括<<以色列信托法>>、<<委内瑞拉信托法>>、<<巴拿马信托法>>、<<南非信托管理法>>以及<<美国路易斯安那州信托法典>>,但它们均未规定无效信托.

③ 反对永久持有规则(rule against perpetuties为美国财产法中的一项规则,这一规则的内容是:任何将来的利益在被创设后,除非在享受它的人的终生加上其死亡后的21年这段时间内被给予该人,否则便应当被确认为无效(此点参见Oseph William singer,introduction to property,中信出版社2003年影印版,第318页.可见违反反对永久持有规则的信托是指其存续期间超过了为反对永久持有规则所限定的将来利益存续期间的信托,尽管美国信托法将这种信托规定为无效信托,但严格说来这种信托却是因违反财产法而归于无效,而并不是因违反信托法而归于无效.

④"公序良俗"为大陆法系民法中的一个概念,存在于此条中的"公共政策"为英美法中的一个概念,存在于被引用的中国<<信托法>>第11条中的"社会公共利益"为我国法律中的一个概念,这两个概念均相当于大陆法系民法中的"公序良俗".此点参见于飞:<<公序良俗原则研究>>,北京大学出版社2006年版,第 41～42页.

⑤ 1959年问世的<<美国信托法重述>>(第2版共有460条,2003年问世的<<美国信托法重述>>(第3版仅有69条,故美国有关学者在介绍美国信托法时往往同时引用这两版中的有关内容以作为依据.例如美国学者安德森的这一介绍便是如此.参见Roger W. Andersen, Understanding Trusts and Estates, LexisNexies, 2003, Chapter 4: Private express trusts(pp.81－118).

⑥ 这里的讨债信托是指非诉讼信托性质的讨债信托,而诉讼信托则为讨债信托的一种,对于此点在本文第五部分中有详细介绍.——笔者注
⑦ <<韩国民法典>>第406条第1款规定:"债务人明知有害于债权人,而实施以财产权为标的法律行为时,债权人可以向法院请求其撤销或恢复原状."
⑧ 参见Lord Hailsham of St, Halsbury's Law of England, volume 48: Trusts, Butterworths, London, 1984. paras 551, 553.

⑨ Andrew Iwobi,Essential Trusts,武汉大学出版社2004年影印版,第11页.

⑩ 参见赖源河、王志诚:<<现代信托法论>>(增订3版,中国政法大学出版社2002年版,第96页.

(11) 谢哲胜:<<信托法总论>>,台湾元照出版公司2003年版,第218页.

(12) 谢哲胜:<<信托法总论>>,台湾元照出版公司2003年版,第109页.

(13) <<韩国信托法>>第1条与中国台湾地区"信托法"第1条均规定信托是指由"委托人将财产权转移给受托人并由后者为受益人利益进行管理或者处分",中国<<信托法>>第2条则规定信托是指由"委托人将财产权委托给受托人并由后者为受益人利益进行管理或者处分",故本文在这里才将"转移"与"委托"并列使用.

(14) 此点可由下述内容佐证:在日本有学者将"诉讼信托"定义为"以信托诉讼或者讨债为主要目的而设立的信托"(参见［日］中野正俊、［中］张军建:<<信托法>>,中国方正出版社2004年版,第63～64页,在我国台湾地区有学者则以通过诉讼方式运作的讨债信托为例来阐明诉讼信托,参见赖源河、王志诚:<<现代信托法论>>(增订3版,中国政法大学出版社2002年版,第65页.

(15) 参见［日］新井诚:<<信托法>>,日本有斐阁株式会社2002年版,第186页.

(16) 参见［日］新井诚:<<信托法>>,日本有斐阁株式会社2002年版,第187页.

(17) 参见［日］新井诚:<<信托法>>,日本有斐阁株式会社2002年版,第187页.

(18) <<日本民法典>>第90条规定:"以违反公共秩序或善良风俗的事项为标的的法律行为无效".

(19) 参见［日］新井诚:<<信托法>>,日本有斐阁株式会社2002年版,第188～189页.

(20) 参见［日］新井诚:<<信托法>>,日本有斐阁株式会社2002年版,第189页.

(21) 参见赖源河、王志诚:<<现代信托法论>>(增订3版,中国政法大学出版社2002年版,第96页、第65～66页.

(22) 参见方嘉麟:<<信托法之理论与实务>>,中国政法大学出版社2004年版,第369页.

(23) 关于律师代理原则在我国法律中并不存在可由<<民事诉讼法>>的下述规定佐证:其第58条第2款规定:"律师、当事人的近亲属、有关的社会团体或者所在单位推荐的人、经人民法院许可的其他公民,都可以被委托为诉讼代理人."
(24) 参见方嘉麟:<<信托法之理论与实务>>,中国政法大学出版社2004年版,第367页.

(25) 参见［日］新井诚:<<信托法>>,日本有斐阁株式会社2002年版,第186页.

(26) 参见方嘉麟:<<信托法之理论与实务>>,中国政法大学出版社2004年版,第367页.

(27) 参见方嘉麟:<<信托法之理论与实务>>,中国政法大学出版社2004年版,第367页.

(28) 参见方嘉麟:<<信托法之理论与实务>>,中国政法大学出版社2004年版,第375页.

(29) 参见方嘉麟:<<信托法之理论与实务>>,中国政法大学出版社2004年版,第356页.

(30) 黄立:<<民法总则>>,中国政法大学出版社2002年版,第428页.

(31) 参见Bryan A. Garner, Black's Law Dictionary, west Group, 1999, Minn, p.1517.

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