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The 2nd Cross-Strait Symposium on Trust Law was Held Successfully

 

By Translator Constance Li,

 

On December 9, 2017, the 2nd cross-Strait symposium on trust law was held successfully at the Law School of Shanghai University of Finance and Economics (SUFE). More than 60 experts, scholars and practitioners from universities, law firms, courts, asset management companies and trust agencies across the Taiwan Strait attended the meeting. This symposium was sponsored by Shanghai Law Society and SUFE, co-organized by Shanghai Lawyer Association Changning Work Committee and Beijing Weiheng (Shanghai) Law Firm, and hosted by Trust Law Research Center of SUFE Law School. Mr. Lin Guoping, the Executive Vice President of Shanghai Law Society attended the symposium and made an important speech.

 

 

The opening ceremony was hosted by Professor Ge Weijun, the Vice Dean of SUFE Law School and Director of Trust Law Research Center of SUFE Law School. He briefed on the preparations for the symposium and emphasized the significance of promoting the study of trust law in the era of formulating Civil Code. There are four speakers in the opening ceremony.

 

 

The first speaker, Professor Song Xiaoyan, Acting Vice Dean of SUFE Law School firstly warmly welcomed all attended guests. In her speech, she said that the historic educational role of “law-to-business integration” of SUFE had an important influence on the development of SUFE Law School. And she also introduced a series of activities celebrating SUFE for 100 years and SUFE Law School for 30 years. Because the symposium was actually one of them. And it was the second cross-Strait symposium discussing trust law after the establishment of the Trust Law Research Center of SUFE Law School. The topic in this symposium was more in-depth and specific than the first one. Professor Song conveyed her wishes that through this symposium, we could respond the needs of society with the theoretical thinking of scholars and legal communities.

 

 

The second speaker was Professor Wang Wenyu who came from the Law School of National Taiwan University. He held that SUFE Law School holding cross-Strait academic symposiums in the field of trust law was a creative example. It was very valuable and reflected the foresight of SUFE Law School. Trust was introduced from common law system. Both the Mainland and Taiwan were still in the stage of learning it. Even though obstacles continued to emerge in this process, that trust finally began to take root and germinate in the Mainland was fulfilling to all of us.

 

 

The third speaker was Mr. Feng Jiaqing, the Vice Director of Law Enforcement Commission of Changning District and the Senior Partner of Haihua Yongtai Law Firm. Mr. Feng mentioned in his speech that the current development of the trust industry in the Mainland was very rapid and the scale of its assets has exceeded 10 trillion yuan so far. Now the scale of the trust industry accounted for a large proportion in the One-Bank-Three-Commission system. And Shanghai was one of the major cities of the trust business in the Mainland where the trust companies and the trust businesses achievements were very impressive. SUFE Law School held trust law symposium meant a lot.

 

 

The forth speaker was Mr. Hu Bin, the lawyer from Beijing Weiheng (Shanghai) Law Firm. He pointed out in his speech that SUFE Law School had considerable advantages in the field of trust law, backed by its profound financial background. Weiheng Law Firm always collaborated smoothly with SUFE Law School for a long time. In addition, Weiheng set up scholarships to finance outstanding students in SUFE Law School. Finally, he wished this cross-Strait trust law symposium a complete success!

 

 

Subsequently, under the host of Professor Ye Mingyi, the Co-Director of the Trust Law Research Center of SUFE Law School, Professor Wang Wenyu, from the Law School of National Taiwan University gave out the keynote speech of this symposium. His article centered on “the Re-Qualification of Abnormal Trust and the ‘Black-White’ Contract: Judging ‘Chungao’ Case from Principles of Civil and Commercial Law.”

 

Professor Wang analyzed in detail the nature of trust law. In view of Taiwan's understanding of the legal relationship of trust, trusts were basically contracts, except the testament trust. However, trust was a concept of property in common law. Despite of this difference, this was not the important factors that affected the trust legislation. The special feature of the trust was that it had a public effect. Professor Wang then pointed out that the key point of trust was the property rights and some kind of transfer of this property rights. The transfer was not ownership because the ownership in civil law was comprehensive. Given the trust’s public effect, it was important to work out what right it was that the trustee used the trust property. It was definitely not the ownership in civil law, but in common law there was also no distinguish. Professor Wang believed that the transfer was a disposition right. But the civil law did not separate disposition and ownership. And that caused the biggest difficulty of introducing the trust law into the Mainland. In any case, it was very important that the property right was transferred out and that based on the transfer, the trustee was able to use the trust property. In addition, Professor Wang supposed that the Mainland trust system was very difficult to set up because there was no trust registration system. Although the real trust did not have the registration system. But countries in common law either relied on the transaction to access information or depended on the trustee to do the transaction. However, in the Mainland, how to register the trust and how about the asset pool. These problems which were the essential difficulty of “trust law” needed to be resolved. Finally, Professor Wang assessed the verdict of “Chungao Case” and warmly discussed with the guests at the scene.

 

 

After the keynote speech, it was the first topic of this symposium “Conflict and Linkage between Trust Law and Civil and Commercial Law” which is hosted by Professor Wu Hong, President of the Financial Law Institute of Shanghai Law Society, and the Professor of East China University of Political Science and Law.

 

 

Associate Professor Lou Jianbo, from Law School of Peking University, talked about the judging standard of the determination of trust property from the historical aspect and the empirical investigation perspective. The determination standard proposed by the Supreme Court was obviously the standard of property division and it required the comparatively complete division.

 

Professor Gao Lingyun, from Law School of Fudan University discussed three basic issues of trust law research in our country. They were the quality, classification and validity of the trust. Professor Gao said that the current classification of the trust in China was very confusing. Trusts varied from circles to circles. There were a wide range of different trusts.

 

Li Yu, the Lecturer of SUFE Law School, believed that the trust law not only had no conflict with the Civil and Commercial Law, but also was itself a part of the civil and commercial law. But to determine which part it belonged to, we should rely on the type of trust to distinct systematically. Although there were many types of trust classification, but classifying trusts according to the purpose was the approach which was most meaningful to legislative system.

 

Professor Chen Xueping, from the Law School of South-central University for Nationalities, addressed her speech focused on the legitimacy of the trustee's right of petition. Professor Chen pointed out that under the background of the imperfect legal system of trust in our country, the legal status of the trustee was unknown. So, the trustee's rights and benefits were not effectively protected. In this case, it was of great significance to entitle the trustee the right of petition learning from the provisions of “legal ownership” in common law.

 

Xu Gang, the Department General Manager of Shanghai Guotai Junan Securities Asset Management Company and the PhD candidate of SUFE Law School, addressed his speech centered on the legal effect of the trust registration. Meanwhile, Yang Qiuyu, the PhD candidate of Law School of Peking University, reported his reflections on the application of contract law in the Trust Law, based on the excavations of 31 arbitration awards.

 

 

In the discussion stage, Judge Fu Wang, the Vice President of the Sixth Civil Court of Shanghai Second People's Court, held that the Trust Law has been enacted for some time, but the trust disputes were still at the starting stage. The current trust company was still essentially engaged in lending business. The biggest problem in practice was whether the trust property was transferred or not. He hoped that more and more trust supporting systems could be established through the academic discussion and research. Professor Zhu Xiaozhe, from SUFE Law School, pointed out that even though the trust law was a “imported product” for civil law countries, the original system of the civil law system could assume the corresponding functions of the trust system. Therefore, civil law countries should combine the transplanted trust system with countries’ own national characteristics, which was of great significance to making the transplanted legal system play an active role in the transplanted countries. Associate Professor Ji Kuiming, from Economic Law School of East China University of Political Science and Law, combining with his recent years’ research, called for the separate formulation of the Commercial Trust Law. However, he also mentioned that due to the current lack of consensus between scholars and practitioners, legislation may still have a long way to go. Associate Professor Zhang Songlun, from the Law School of Nanjing Normal University, said that the lack of distinction of “two kinds of ownership” in civil law system comparing with the common law system caused the extremely slow development of trust system in civil law countries. Therefore, we should pay more attention to the flexibility of this system and to the integration with the traditions of civil law countries.

 

 

The second topic of this symposium was “the Basic Theory and Development Frontier of Charitable Trusts.” And it was hosted by Professor Shao Qingping, the Vice Dean of the Law School of National Taiwan University.

 

 

Associate Professor Jin Jinping, from the Law School of Peking University, made a speech titled “Regulation of Charitable Trust.” She firstly defined the “charitable trust,” especially its purpose and connotation. Then, she pointed out that restrictions of current charitable trust property rules were one troublesome problem confusing scholars. Finally, she thought it was difficult to make the supervision regulation reasonable because under the current Trust Law and related supporting systems, the position of charitable trusts was not clear and the special meaning of regulation of charitable trusts failed to be confirmed.

 

Professor Wang Zhicheng, from the Law School of National Chung Cheng University, addressed his report focused on “the Development, Governance and Empirical Analysis of Taiwan's Public Trusts.” He analyzed the current situation of Taiwan's public trust from the empirical view. And he pointed out that the purpose of Taiwan's public trust was diverse. He put forward that information disclosure was exactly the core of public trust governance, which was just scarcer in practice.

 

Associate Professor Zhao Lianhui, from the Civil and Commercial Law School of China University of Political Science and Law, made a speech titled “Is It Possible for a Public Offering Charitable Trust?” He analyzed that setting up the public offering way of the trust did not violate the essence of the trust. And he proposed that if the special rules of the public offering charitable trust were admitted, the Charity Law and the Trust Law needed to respond accordingly to the supervisor system and information disclosure.

 

Associate Professor Xu Wei, from Kaiyuan Law School of Shanghai Jiao Tong University, pointed out that the definition of “charitable trust” was erratic due to the ambiguous description of the concept of “charitable trust” in the Charity Law, which caused a lot of problems concerning the application of law. Therefore, he put forward the idea that defining charitable trust as an organization should mean a lot in litigation, taxation, account management and so on.

 

Full-time Assistant Professor Lin Mengxiang, from the Department of Financial Law of Law School of Ming Chuan University, made a report on “Research on the Current Situation and Corrections of the Legal System of Japanese Public Trust.” And he pointed out that the independence of trust property and the determination of trust compensation were the major problems in Taiwan's judicial practice and proposed a kind of governance mechanism of public trust which took the Japan's external committee system as a reference.

 

Professor Wen Jie, from Law School of Huazhong Normal University, reported on “Perfection of the Legal System of Charitable Trust Supervisor in China.” He pointed out that the establishment of supervisor under the charitable trust should be a kind of mandatory rules, analyzing from the three perspectives of safeguarding the usufruct of trust, of strengthening the supervision over the trustee and of maintaining the public interests. And he believed that the charitable trust supervisor should bear the liability for compensation when he/she violated the supervisory obligation.

 

 

In the discussion stage, Ms. Tang Shumei, the Vice President of China Banking Law Society and the Vice President of China Credit Trust Co., Ltd., pointed out that although the definition of charitable trusts varied widely and the relevant system was still not perfect, the system design must be combined with Chinese characteristics and with solving problems in practice. Ms. Xie Kun, the Deputy Editor of Law Press China, pointed out that in practice the business scale of charitable trust was small and immature. And she said that from a global perspective, charitable trust had a tendency of declining gradually. In this trend, she raised the doubt how charitable trusts could exert its comprehensive functions. Associate Professor Xiang Xianguo, from Tangshan Normal University, firstly responded to the question of the relatively poor applicability of the Trust Law in practice. He pointed out that the relative judicial interpretations should be promulgated by the Supreme Court to strengthen the applicability of the Trust Law. And he strongly agreed the view of setting up the supervisor in the charitable trust. And he stressed that the supervisor system should be made concrete and clear as soon as possible. Pan Xiao, the Lecturer of SUFE Law School, put forward that the British legislation technology could solve the problems of the legal application of charitable trusts and charitable organizations. In addition, she raised the doubt the change of trustee of charitable trusts.

 

 

The third topic of this symposium was “Testament Trust and Wealth Management,” under the host of Professor Han Qiang, Dean of the International School of Financial Law of East China University of Political Science and Law.

 

 

Associate Professor Zhao Lianhui, from the Civil and Commercial Law School of China University of Political Science and Law, gave a speech focus on “Analysis on Trust Laws under the Background of Testament Trust System in China.” He said that the time when the testament trust agreement entered into force and the determination of the trustee were two problems always plagued the Trust Law and the trust industry. Besides the elective mechanism of the trustee was also very deficient in the Trust Law. He analyzed the public fiduciary duties in the British Law and the “anti-dead hand principle” in the United States Law, and pointed out the significance of learning from those.

 

Chen Jiasheng, the Lecturer of the law school of Ming Chuan University, whose speech title was “Research on the Legal Issues Related to Testament Trust Practice: Centering on Taiwan’s Testament Trust,” gave a very detailed introduction and combing on Taiwan's practical experience. What’s more, he analyzed the opinions and practice on the time when the testament trust entered into force, on the succession of the trustee’s status in the testament trust, and on issues about the deduction of the forced heirship, by respective Taiwan's theorists and practitioners.

 

Professor Li Zhiren, from Shih Chien University, made a speech focusing on “the Charitable Practice in Family Inheritance.” He proposed the business composed of family offices would be prosperous in the future. In addition, he conducted an analysis in the aspects of family management, corporate governance, filing finance, asset integration and financial statistics and audit, in an easy-to-understand way.

 

Mr. Sun Changgang, the Senior Partner of Weiheng Law Firm, made a speech titled “Reflections on the Issues of Family Affairs and Private International Law in Foreign-related Trust Practice.” He said that the trust with the sense of wealth inheritance was recently an important topic in the field of marriage and family affairs. However, in practice there were a lot of difficulties in implementing the foreign-related trusts. He appealed all the experts and scholars attending this symposium to conduct more in-depth discussions on the trust-related family affairs and international judicial issues.

 

Associate Professor Li Xiaolong, from the Law School of Tianjin University of Finance and Economics, made a speech titled “Entrusted Wealth Management from the Perspective of the Application of Trust Law.” He firstly defined the concept of entrusted wealth management. Then he figured out that in practice there were controversies. For example, the nature of entrusted wealth management contracts was unclear; and the related legal application was chaotic. Finally, he put forward that it was reasonable to solve the entrusted wealth management case from the perspective of trust.

 

General Manager Sun Min, from the Risk Control and Compliance Department of Shanghai Fucheng HFT Fortune Asset Management Co., Ltd., gave a speech on “the Trust Basis and the Bankruptcy Recovery Right in the Entrusted Wealth Management Relationship,” emphasizing the system supply function of the trust law in the asset management.

 

 

In the discussion stage, Associate Professor Ji Hailong, from the International School of Financial Law of East China University of Political Science and Law, pointed out that the testament trust should fully respect the trustee‘s private autonomy. In the question of when the testament trust would come into effect, there were two kind of value evaluation: to promote the increase of the trust property and to promote the continuance of the trust property. Mr. Gu Jing, the Vice Director of Law Enforcement Commission of Changning District and the lawyer of Weiheng Law Firm, pointed out that in the issue of forced heirship, the invalid part should not affect the valid part. In addition, the basis of the verdicts of entrusted wealth management in practice was confusing, which was an important issue urgent to be solved by theorists and judicial practitioners. Mr. Xie Xuekai, Compliance Manager of JIC Trust Co., Ltd., pointed out that there was a great demand of family trusts and that family trusts also had great potential for development in the future. Fan Jian, the Lecturer of SUFE Law School, firstly raised doubt whether the business of entrusted wealth management should qualify for franchising under the era of big asset management. Then he analyzed the qualitative problems of the trust contract and the role of bankruptcy isolation as discussed earlier.

 

 

The closing ceremony was hosted by Professor Zhu Xiaozhe, the Co-Director of the Trust Law Research Center of SUFE Law School. Full-time Assistant Professor Lin Mengxiang, from the Department of Financial Law of Law School of Ming Chuan University, and Associate Professor Jin Jinping, from the Law School of Peking University, did the academic summary in order. After a one-day conference, experts and scholars conducted a heated discussion on the theory, philosophy, practice and frontier issues of the current trust law in our country, from different perspectives of their respective researches. During the meeting, experts gave brilliant presentations and intensely discussed some issues in the frontier. Their brainstorm with other experts and scholars inspired a lot of thought sparks. Experts and scholars on both sides of the Strait also discussed some legal issues concerning charitable trusts and offshore trusts. The extension of theoretical controversies, like the difference between entrusted wealth management and trust, the difference between public trust and charitable trust, trust was a behavior or an organization, the latest family trust and related issues, the establishment and registration system of trust, and the establishment of trust law, etc., was very necessary. Professor Ge Weijun, the Vice Dean of SUFE Law School, expressed his heart-felt gratitude to all the experts, scholars, administrators and volunteers who attended the meeting, and hoped that the Trust Law Research Center of SUFE Law School would continue to receive the strong support of experts and scholars.

 

 

Finally, Mr. Lin Guoping, the Executive Vice President of Shanghai Law Society, delivered a closing speech. Mr. Lin spoke highly of this symposium. He said that SUFE Law School established a kind of cross-Strait mechanism of exchanging ideas in trust law by holding the symposium on trust law. And it was also an achievement in teaching research on civil and commercial law. Mr. Lin pointed out that developing China's trust industry required not only to learn the advanced foreign legislation, but also to research based on China’s actual conditions. The research on how to avoid conflicts and how to solve the relative issues at the legislative level should be explored from both the theoretical and practical aspects. This symposium especially discussed the topics like charitable trusts, testament trusts and so on, which helped to further promote the research of China's trust law. Finally, Mr. Lin expressed his wishes that SUFE Law School could make greater contributions to promoting the idea exchange of cross-Strait Trust Law and the development of civil and commercial law.

 

 

The symposium finally came to an end in the warm applause. Everyone said that the symposium was of great significance to strengthen the research on trust law. Everyone benefited a lot and was eagerly looking forward to the next cross-Strait symposium on trust law.

 

(Original News: http://law.shufe.edu.cn/show.aspx?info_lb=12&flag=12&info_id=3662)

Published:2017-12-22 Hit:175
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