Доверительное управление и траст: опыт стран континентального права

Abstract

The increasing complexity and internationalization of economic processes, escalation of risks of solo asset management, constant change of market conditions, emergence of new means of earning income from property demand from the owner of any valuable assets to find a professional who can effectively manage an estate. Lack of clearness in legislative regulation in the Russian Federation stimulates the title holders to use international law institutes such as trust, rather than national asset management. The author underlines unrecoverable problems occurring during attempts of implementation of trusts into the legislation of European countries, gives examples of alternative institutes of an asset management. The article describes problems occurring because of trust implementation into civil law. The author makes the comparative analysis of the “contract” model and the “trust” model of asset management and gives several examples of successful application of trust-like institutions in civil law countries, such as: Institution of precede and subsequent successors (Vorerbe and Nacherbe); Dauertestamentsvollstrecker and Treuhand in the law of succession and corporate law of Germany; la fiducie in civil law of France. The article contains a brief overview of the Hague Convention on the Law Applicable to Trusts and on their Recognition 1985 as an example of harmonization of common understanding of trust among European countries and the resolution of the problem of legal qualification of trust relations by civil courts.