Fiducijarni prenos prava svojine - jedna ili više svojina?

Abstract

Fiduciary transfer of ownership is being introduced in more and more civil law jurisdictions as a reply to increasing popularity of trust viewed as a division in ownership between the trustee and the beneficiary. I used examples of Quebec, France, and Germany to show how these civilian systems deal with the notion of division of ownership. In the first two they use various constructs such as division of patrimony, or no one’s patrimony, while in Germany it seems it is clear that the trustee acquires full ownership over entrusted assets whereas settlor or beneficiary have only personal rights. Also one gets the impression that the focus was at the protection of entrusted patrimony from the creditors. Nothing suggests that due attention was paid to the protection of settlor or beneficiary in case of trustee’s breach of trust and alienation of entrusted assets contrary to the trust instrument. I believe that settlor or beneficiaries should have rights in rem against the trustee and third party acquirers of entrusted assets, and that leads to the concept of fiduciary ownership as a division in ownership between the settlor and the trustee or trustee and beneficiary, essentially it means the emergence of different kinds of ownership.