Public Trusts

Public, as distinct from charitable, trusts were authoritatively recognised in 1827, when the House of Lords determined that the permanent basis of equitable jurisdiction protected 'public money' from unlawful application, on the same basis as charitable funds were protected. These trusts made the relevant public functionaries subject to equitable remedies, but the remedies were displaced from equitable practice by jurisdictional fusion and by administrative audit surcharges. In the twentieth century they survived unrecognised in the ambiguously phrased 'local authority fiduciary duty to ratepayers'. Recently, public trusts have again been implicitly acknowledged, and the distinctive remedy of personal liability to make good loss arising from misapplication has been applied. However the right to litigate is confined to current fund-holders in fulfilment of their protective trust duty and to the Attorney General in the general public interest in countering unlawful appropriations of public money.     

Lewin on Trusts

Lewin on Trusts has long been an important resource for lawyersengaged in advising or litigating about trusts. Having beenresurrected in 2000 after a gap of 36 years by John Mowbrayand his team with the 17th edition, it now emerges in its 18thedition this year in a yet more comprehensive and expanded form.As anyone who has written any part of any legal text will readilybe able to discern, a very great deal of time and attentionhas clearly been devoted to it by its authors for which manyof us with less energy and application can only be grateful. As the authors’ preface to the new edition makes clear,they have not merely brought the new edition up to date withlegal developments over the last 8 years, substantial work thougheven that has     

集合资金信托商事法律关系主体化研究

集合资金信托符合商事法律关系主体所要求的营利性、营业性、公开性及专业性特征,兼有资产隔离与内部治理的商事组织基本属性,具备成为商事主体的条件。一旦集合资金信托成为具有独立地位的商事法律关系主体,信托财产归属、受托人义务及责任承担等问题将顺利解决,自然人委托人与信托公司间地位趋向平衡,投资者利益因此得到有效保护。     

Law of Trusts and Trustees

In the past a new edition of this standard textbook was producedevery eight years. As David Hayton says, in his preface, thatnow with the need for more frequent editions in light of increasingrapid developments in the trust world this seventeenth editioncomes out three years after the previous one. David Hayton is joined in the editorial role by Paul Matthewsand Charles Mitchell. The former is responsible for preparingthe Administration of Trusts section and Charles Mitchell forpreparing the division of the book on Trusts Imposed by Lawand The Consequences of a Breach of Trust. Jonathan Harris coversthe     

衡平法、用益与信托:英国信托法的早期史概说

英美信托制源自用益制。在用益和信托的早期史上,大法官法院基于拯救受托人的良心的衡平管辖权赋予了用益和信托以法律上的保障,而衡平法从"良心到衡平"的变化通过塑造衡平权益使得信托得以制度化。     

论诉讼信托和讨债信托的效力——探讨《信托法》第11条第4项

我国《信托法》第11条第4项规定,专以诉讼或者讨债为目的设立的信托无效。然而,该条文是对日本《信托法》移植的结果,我国并没有禁止诉讼信托和讨债信托的理由。同时,该条文容易被规避且难以被认定,在司法实践中缺乏适用的空间。再者,该条文不仅与我国现行的诸多法律条文和制度产生冲突,而且与我国减少社会不良资产和增强我国公民法律意识、维权意识的目的相违背,故应当删除。事实上,诉讼信托和讨债信托不仅符合信托设立的要求,而且能使债权人、债务人受益,并起到减少讼累等有利效果,因此,应当承认诉讼信托和讨债信托在我国的合法地位。     

Drafting Trusts and Will Trusts in the Channel Islands, James Kessler QC and Paul Matthams

This is the latest in the series of book based upon James Kessler'swell-known book on the simplification of trust drafting. Theco-author of this publication is Paul Matthams, Advocate ofthe Royal Court of     

The Development of the Public Benefit Requirement for Charitable Trusts in the Nineteenth Century

The first express judicial reliance on the public benefit requirement for charitable trusts to conclusively determine charitable validity seems to occur in 1862, although implied references to similar ideas are seen up to a century previously. With limited exceptions, the origin of the public benefit requirement has been under-examined. This article argues that a multi-factorial and contextual approach best explains its adoption in the nineteenth century. Three developments in nineteenth-century law and society encouraged judges to broaden charity law: (1) increasing religious pluralism, (2) increasing state education, and (3) regular income taxation. These changes, combined with the formalization of the doctrine of precedent, required both some limit on the scope of charity law and a new substantive justification for novel decisions on charitable validity. This article argues that judges and lawyers, whether intentionally or subconsciously, borrowed ideas of public benefit from closely related mortmain cases to develop the public benefit requirement.     

知识产权信托:知识产权运作机制

知识产权人对如何获得和利用知识产权十分了解,但对商业和市场知之甚少。而且知识产权的经营管理不同于别的财产权,其利益实现过程中的高风险、高成本以及极大的不确定性,使得缺乏理财能力或无暇管理的知识产权人往往举步维艰。知识产权人通过信托方式委托具有专业理财能力的信托机构经营管理其知识产权,不仅可以享受其智力成果带来的丰厚利益并无须负担管理之责,而且有效地拓宽了知识产权流转的途径,能更好地实现知识产权的保值、增值。     

Trusts for Religious Purposes and the Question of Public Benefit

It is a well‐established principle that no trust may be regarded as charitable in law unless carrying out its purposes will benefit the public. Trusts for religious purposes have traditionally been presumed by courts to be for the public benefit. However, the presumption of public benefit will be removed from the law in early 2008 when section 3(2) of the Charities Act 2006 comes into force. At that time, two questions are likely to attract interest. First, to what extent, and in what ways, has the application of a presumption of public benefit assisted courts up to now? Secondly, without the assistance of the presumption, how might courts go about ascertaining whether the public will benefit in future cases? The article takes up these two questions with respect to trusts for religious purposes.     

论民事抗诉监督的信任保证

民事抗诉监督对司法公信力的修补,应当处理好四个方面的辨证统一关系:监督与信任的关系、既判力与再审的关系、实体判断与程序监督的关系、依存性信任与主体性信任的关系.现行宪政框架中我国检察机关的民事抗诉监督,试图通过三种渠道对司法公信力进行修补,即:再审抗诉的不得拒绝、审判监督前置对再审案件的过滤、提高一级的"上抗上审".<民事诉讼法>修正案对此进行了有益的改革,但个别规定还需进一步论证和完善.