Exploring Solutions to the Conflict between the Ownership of Trust Property and the Numerus Clauses

Abstract

The principle of numerus clauses is the basic principle of civil law countries, and trusts, as a product of the common law system, are bound to diverge from it. Among them, the conflict between the ownership of trust property and the numerus clauses is the most significant. How to ease the conflict between the two in order to promote the long-term development of trusts in China has attracted a lot of attention. Trusts are developing rapidly around the world, and a comparative study approach has been adopted, of which the following are representative views: (i) Japanese scholars consider that trust is a legal relationship with both jus in rem and obligations, and thus hold the view that trust property has both owner’s right and creator’s right. (ii) the common-law scholars deem that the legal nature of a trust is that the trustee and the beneficiary share the ownership of the trust property, namely dual property rights, which is a kind of “ a bundle of rights “. This article argues that the contradiction between the ownership of trust property and the legal principle of property rights can be alleviated by strengthening the practical regulation and the improvement of the relevant laws based on the essence of trusts, which are based on trust.