信托的源起与商业化

信托起源于英国的用益制度,是委托人基于对受托人的信赖而将信托财产转移给受托人,由其为受益人的利益或其他法律规定的目的持有、管理、处分该财产的一种财产管理制度.随着经济与法律的发展,信托保有和转移财产的功能逐渐为财产管理的内涵所取代,其开始进入商事领域并且得到了广泛的运用.在广义的信托商业化中,商业信托以信托的基本原理与...     

论不动产善意取得的构成要件

与国外立法比较,不动产的善意取得是我国《物权法》对善意取得制度的适用扩张.善意取得制度的价值基础和理论基础是不动产善意取得构成的出发点,分析不动产善意取得构成要件具有现实意义.     

THE MEANING OF DEVELOPMENT ASSISTANCE

Prevailing paradigms of macro‐economic management and levels and distributions of poverty in some rich countries suggest that economic and strategic self‐interest rather than poverty reduction in poor countries are likely to be the primary objectives of much development assistance. The incommensurability of the paradigms of development discourse makes it unlikely that strongly held ideologically based positions on these matters will change quickly or easily. Moreover, non‐altruistic positions can be maintained more readily by virtue of the loose construction of international declarations such as the Paris Declaration. Based on different interpretations of the Paris Declaration, empirical evidence from Cambodia and Indonesia of donor opportunism that is designed to maximise aid control and aid distinctiveness for non‐altruistic purposes is presented. Recent sharp declines in donor legitimacy have made this more difficult to do, but even so, there have been no concomitant reductions in donor self‐assurance concerning their exclusive possession of the moral and technical high ground. Such behaviour is, however, increasingly resented particularly by government officials in lower middle‐income countries like Indonesia. Resulting relationships lack trust and are therefore unlikely to contribute optimally either to the realisation of non‐altruistic purposes or to poverty reduction. Copyright © 2011 John Wiley & Sons, Ltd.     

中国信托业陷入低迷的法律分析——写在《信托法》实施以后

我国信托业虽然与银行业、保险业、证券业一并号称为现代金融体系的四大支柱,但信托业无疑是最弱的一支。《信托法》的出台并没有带来信托业的繁荣,在真正回归了＂受人之托,代人理财＂的核心主业以后,信托业却长期陷入了低迷。分析表明,在我国信托法中,双重所有权的法系冲突问题悬而未决,受托人容易沦为委托人的代理人,委托人和受益人容易出现对峙僵局,瑕疵承继制度矫枉过正,信托财产公示制度有名无实,没有合理的市场退出机制。这些立法缺陷是中国信托业陷入低迷状态的重要原因,也是信托制度在我国没有顺利实现本土化的突出表现。可以断言,中国的信托业已进入瓶颈阶段,信托法能否实现本土化是我国信托业能否走出低迷的关键。     

论我国《信托法》的法律适用困难

我国<信托法>仍然沿袭了大陆法国家对信托制度的移植路径,即信托基于合同设定,因此受益人的财产权利不明确,受益人无法在权利受损时获得有效救济.2004年发生的金新信托"乳品信托计划"纠纷更是凸显出<信托法>的法律适用困难,"信托财产"和"财产权"的含糊表述无法明确界定信托相关人的责任以及信托财产的具体损失;法官裁量权的不足使得信托制度的衡平和灵活的特点难以得到实现.     

What Makes Parties Trust Mediators?

The relationship of trust between mediators and parties is a key element of the mediation process. This article reviews the trust relationship from the parties' perspectives. A qualitative research methodology was used to identify five key factors explaining why parties trust their mediator: degree of mastery over the process, explanation of the process, warmth and consideration, chemistry with the parties, and lack of bias toward either party. The theoretical and practical implications of the results are discussed.     

Living in a Policy State: From Trust for Sale to Trust of Land

The Trusts of Land and Appointment of Trustees Act 1996has transformed the nature of co-ownership interests in land.The trust for sale, which governed dealings in co-ownedproperty under the Law of Property Act 1925, and whichmade sale the presumptive object of co-ownership, has been replaced by a trust of land, under which co-owners retainan interest in the land itself, rather than its capital value.This article considers the likely impact of this legislativepolicy departure, particularly in relation to the court'swillingness to grant an order for the sale of co-owned propertyon application by a creditor, and against the wishes of anon-debtor co-owner occupier.     

Antecedents and consequences of interpersonal trust： An empirical study

The main purpose of this paper is to explore the effect of empowerment, participation and feedback as antecedents of interpersonal trust and organizational commitment and productivity as consequences of interpersonal trust. This study also attempts to find the influence of empowerment, participation and feedback on positive organizational outcomes such as organizational commitment and productivity. A quantitative research design was employed. Data were collected through survey instrument from 186 participants comprising professional, administrative and support staff working in one municipality of Istanbul （Turkey） government. The research results indicate that interpersonal trust is vital to positive organizational outcomes such as organizational commitment and productivity and to enhance the interpersonal trust and positive organizational outcomes, which are characterized by empowerment, participation and feedback are very important.     

New Public Governance in the Baltic States: Flexible Administration and Rule Bending

Abstract

The New Public Governance approach advocates a more flexible and participatory public administration as means to higher efficiency and increased legitimacy. Increasing flexibility and thereby public employees’ discretion, however, may pose a risk to equality and impartiality, core values in democratic and rule-of-law societies. Using a survey among Baltic public employees, this article explores this risk. We ask whether public employees’ preferences for flexible rule application go hand in hand with acceptance of bending the rules, even if it means a breach of impartiality. We find that this is the case. We also find that contrary to what the New Public Governance approach expects, neither citizen participation nor generalized trust works as a control on rule bending. On a positive note, however, we find that control mechanisms associated with Weberian Public Administration lessen acceptance for bending the rules.