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On the Application of Commercial Trust to Commercial Organizational Relationship

Author: ChenSen
Tutor: WangWeiGuo
School: China University of Political Science
Course: Civil and Commercial Law
Keywords: trust commercial trust commercial organizational relationship
CLC: D922.282
Type: Master's thesis
Year: 2009
Downloads: 192
Quote: 2
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Abstract


At present, the commercial trust is widely used in the various types of commercial organizational relationship such as securities investment funds, pension plans, asset backed securitization, real estate investment trusts, as well as enterprises in industry and commerce and has an important function to play. In this thesis, the application of commercial trust to commercial organizational relationship is to be object of study, the thesis’ research methods include economic analysis, empirical analysis and comparative analysis, the purpose of this thesis is to provide theoretical support for improving legal system and perfecting legislation of commercial trust applying to commercial organizational relationship.In addition to the introduction and conclusion, the main body of thesis is divided into four chapters.Chapter One is“an overview of commercial trust”. The thesis defines commercial trust by comparing the concept in two legal systems, and then analyzes the characteristics of commercial trust. Then the thesis shows the status quo of the commercial trust and its application to commercial organizational relationship in development. Commercial trust in the thesis refers to private trust established by business trustee specializing in the trust services to engage in commercial activity. Empirical study shows that commercial trust applying to various types of commercial organizational relations especially in organizations of financial services sector, their property concentrate on financial assets, the main types include the pension trusts, securities investment trusts, special purpose trusts in asset backed securitization and real estate investment trusts. Chapter Two is“the institutional foundation of commercial trust applying to commercial organizational relationship.”Through economic analysis mainly, the chapter shows that the commercial organizations arise from reducing transaction costs and have two components including the independent business assets and appropriate governance mechanisms. The multi-dimension analysis of the Contract Law, Property Law and the Organizational Law from the trust system itself provides a more comprehensive perspective. Commercial trust not only has independent trust property, but also has governance mechanisms to adapt to the asset characteristic in financial markets and to reduce the agency costs effectively. Based on this, commercial trust is able to establish and operate commercial organizational relationship in the relative integrity.Chapter Three is“the function advantages of commercial trust applying to commercial organizational relationship.”Commercial trust that is function-oriented and value-ended in applying to commercial organizational relationship is designed to solve the problems when the other commercial legal institutions and commercial organization forms can not or are able to but the cost is too high. The advantages of commercial trust include: the flexible design function of governance mechanisms, check and balance function of the trustee’s powers and duties, bankruptcy remote function, as well as function of tax incentives, and the use of these functions is a concrete manifestation of the advantages in various types of commercial organizational relationship.Chapter Four is“to improve the legal system about commercial trust applying to commercial organizational relationship.”The thesis figure that commercial trust has an extensive and long-term development prospects in China. However, as an exotic from the traditional common-law system, commercial trust running conflict with the civil-law system followed by China inevitably. Use the experience of establishing and perfecting the legal system about commercial trust in some civil-law countries, regions for reference, and in order to give full play to function advantages of commercial trust applying to commercial organizational relationship, we ought to revise and perfect“Trust Law”on a foundation of the existing legal system of China, establish and improve the trust industry legislation, as well as other complementary law and regulations.

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CLC: > Political, legal > Legal > Chinese law > Financial Law > Trust, Credit Act
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