The Pension Trust: Fit For Purpose?

The law of trusts plays an integral and multi‐faceted role in the regulatory scheme shaping the occupational pensions arena in Australia and the United Kingdom. It facilitates the operation of private law modalities, such as innovation and competition. However, that openness also renders members’ interests vulnerable and the lack of transparency and emaciated accountability mechanisms within trust law undermine the powerful normative force exerted by the language in which trust doctrine is so often couched. That said, the regulatory regimes buttress, and rely upon, the protections offered by trust law. The result is a compelling illustration of the nuanced way in which private law is employed in a modern regulatory state.     

目的信托制度比较研究——以日本《信托法》为参考

传统信托法理论不承认没有受益人的非公益信托（目的信托）。但是,现代信托法在朝着认可目的信托的方向发展,英美和日本的信托立法都显示了这一迹象。本文以日本新《信托法》上的目的信托制度为中心进行探讨,主张为了向制度利用者提供满足多种偏好的制度菜单,为了更好地体现信托制度的灵活特点、实现其破产隔离和财产安排功能,应在控制目的信托的弊端的基础上引入目的信托制度。     

国际信托的法律冲突与法律适用

在各国法律制度存在差异的情况下,如何解决国际信托法律冲突的难题,已逐渐引起世界各国理论界和实务界的重视。对国际信托法律冲突问题进行探讨的目的在于,就国际信托法律适用的国际立法与国外立法作深入研究。随着我国加入WTO和改革开放的不断深入,国际信托业务在我国将取得进一步发展。我国目前的国际私法立法尚无信托冲突法,因此,完善我国的国际信托法律适用规则是当务之急。     

信托制度异化论——对我国现行信托产品法律结构之评判

《中华人民共和国信托法》突破了我国原先“一物一权”的成文法系传统,导入了“名义所有权”与“实际所有权”分离的所有权“二元制结构”。面对这种全新的法律结构,实务界往往将信托当作新的融资工具进行利用。事实上,我国目前的信托产品并不具备信托所应具备的法律特征,而立法界与理论界对此又缺少相应的回应,信托产品离真正的信托制度渐行渐远。为此,通过对信托法律关系和法律特征的梳理,剖析并解释现行主要信托产品存在的结构性问题,以期纠正现有对信托“实用主义”功能下的错误认识,还原信托的本来面貌。     

Private Security: Enforcing Corporate Security Policy Using Private Investigators

This article focuses on the use of private investigators as external agents, commissioned to enforce internal corporate security policy. After describing the sorts of services private investigators provide to industry and commerce and the legal contexts within which they operate, it considers private investigators as a form of secret police within private justice systems defined by companies. It considers the relationship between notions of public good and commercial expediency and raises important questions about the problem of controlling activities which are purposefully kept from legal scrutiny.     

Selected legal aspects concerning the regulation of trusts and private foundations in the Russian federation

The authors are the first contributors from the Russian Federationand introduce the reader to Russian legal concepts which incorporatethe idea of the Anglo-Saxon trust as well as the private foundationand discuss how foreign trusts and foundations are perceivedby the Russian legislator.     

有限公司股东出资争议救济分析

有限责任公司凭股东之间的互相信任达到资产集合的目的，这就是公司是财产集合体中的人合性因素，股东的信赖利益又源于各个股东都出了资，股东的投资利益和投资风险都与公司绑在了一块，当部分股东没有出资、出资不实、出资不到位、抽回出资时，他对公司的承担责任的就相应减少、但他在公司获得的利益却保持不变甚至相应增加，其他股东感觉不公平，于是就造成了许多因出资引发的争议。没有出资股东对已经出资股东的五种不公平情形，其中最重要不是分红，而是获取公司高管的机会，对此的争议救济方法主要包括：各股东按照公司章程或者出资协议的规定行使股权，不能达成协议的，各股东仍然应按照原来股权范围行使股权，要求未出资和未完全出资的股东限期出资，未出资的股东暂停其表决权、知情权、参与公司管理权和暂停担任公司高管职务，要求减少未完全出资的股东的表决权，减少后的比例与其已出资占应出资的比例相当，要求暂停未完全出资股东担任公司高管职务，减少未完全出资股东担任公司高管职务的数量，减少的数量与其已出资比例相当，除了公司高管之外，该股东推荐（或者委派）担任公司高层管理人员的数量也应相应减少。     

现代商事信托的组织法基础

从民事信托到商事信托,信托关系的本质完成了从财产无偿移转的手段到企业组织架构的变革。商事信托作为组织法,其具有商事组织的典型共性,而且在制度设计和受托人信义义务的标准上,商事信托也与商事公司制度近年来出现了明显的趋同。我国现行信托立法无论是在受托人承担有限责任的规定上,还是在信托投资的规模上以及在受托人的资格取得上,都离成熟的组织法的要求还都相距甚远。     

中国公司法之构造缺陷及克服

作者认为 ,中国公司法在实践中存在以下缺陷 :有限公司与股份公司的组织机构之间区别模糊、国有独资公司定位不当、股份公司之董事会缺少有效约束、监事会的监督职能虚拟化以及对关联公司以及公司集团的约束不力。为更好地发挥公司在市场经济中的作用 ,实有改革有限公司制度以及重新塑造股份公司之董事会与监事会关系的必要。此外 ,还应当增加对关联公司与公司集团的法律规定。     

Subcontracting military power: The privatisation of security in contemporary Sub-Saharan Africa

This article seeks to establish a clear differencebetween the classical view of mercenaries as hiredguns and the more recent, business oriented,phenomenon of private security companies. Thelimitations of the definitions currently used ininternational law will be explored and their impact onthe control of private military forces assessed. Thearticle will then go on to identify the particularcircumstances existing in Africa that provide such afertile environment for the operation of privatesecurity companies. The activities of ExecutiveOutcomes and Sandline International Ltd will be usedas case studies, particularly their operations inSierra Leone. Their corporate connections will behighlighted, especially their links to mineralextraction companies, and how these are used tofinance their operations by the host countries.Finally, recent attempts to legislate to control theactivities of these companies are examined.     

Aspects of the evolution of extra-legal protection in Bulgaria (1989–1999)

In this paper I look at the interplay between organised crime, law, and the state and argue that the evolution of organised crime organisations in Bulgaria was shaped by the dynamic transformation of the legal and economic environment during the 90s, by policies of the state, such as, for example, the regulation of the private security and insurance industries (in 1994 and 1998 respectively), which mafia-like organisations used as fronts for their activities during the 90s and by the ability of organised crime organisations to adapt to the constantly changing conditions. In the first section of the paper I look at the emergence of the private security and private protection industries in Bulgaria with an emphasis on the development of organisations using the threat of violence to settle disputes, discourage competition, retrieve stolen property and collect debts. In the second section of the paper, I follow the transformation of certain type of private security companies into insurance companies, which directed their activities at properties liable to risk, for instance cars and small shops. They enjoyed an advantage over ordinary insurance companies because they possessed greater information about the risks, which could affect the property of their clients, for example theft (car theft in particular). The concluding section discusses the development of silovi grupirovki (the Bulgarian name for organised crime organisations) after 1998 when a very strict licensing regime for insurance companies was introduced and alleged to be mafia-like organisations were removed from the insurance market.

The Bahamas: New legislation to accommodate private trust companies ('PTCs')

The existence of private trust companies in the jurisdictionhas, in recent years, become an important factor in attractingclients to that jurisdiction. Although private trust companiesare not a new idea, they have been frequently restricted tothose with a high minimum capital which has not made them worthwhilefor some trusts. The attraction of a PTC is that the settlor can establish hisown trustee as a separate legal person and thereby, probablyin conjunction with beneficiaries, enjoy more involvement inthe trust's administration. The representation of the settlorsand beneficiaries on the board of the directors of the PTC shouldavoid many of the conflicts which might arise between settlorsand beneficiaries and the trustees.     

Trust in digital records: An increasingly cloudy legal area

Trust has been defined in many ways, but at its core it involves acting without the knowledge needed to act. Trust in records depends on four types of knowledge about the creator or custodian of the records: reputation, past performance, competence, and the assurance of confidence in future performance. For over half a century society has been developing and adopting new computer technologies for business and communications in both the public and private realm. Frameworks for establishing trust have developed as technology has progressed. Today, individuals and organizations are increasingly saving and accessing records in cloud computing infrastructures, where we cannot assess our trust in records solely on the four types of knowledge used in the past. Drawing on research conducted at the University of British Columbia into the nature of digital records and their trustworthiness, this article presents the conceptual archival and digital forensic frameworks of trust in records and data, and explores the common law legal framework within which questions of trust in documentary evidence are being tested. Issues and challenges specific to cloud computing are introduced.     

Mutual Trust and Cross-Border Enforcement of Judgments in Civil Matters in the EU: Does the Step-by-Step Approach Work?

Netherlands International Law Review - Mutual trust is one of the cornerstones of cooperation in the field of European Union private international law. Based on this principle the rules on the...     

通胀企图和民企的饥渴

中国的贷款都流向了国企，现在才有点想流进民企，未来我们究竟应该改变信贷的什么呢？面对“通胀”的企图，我们该如何冷静以待？     

不动产物权登记立法研究

我国物权登记立法应确立登记行为私法观念 ,建立统一、独立、以服务于交易安全为任务的登记机关、登记赔偿制度、异议登记制度等 ;确立物权行为独立性与无因基础上的实质审议主义 ,公开登记薄以确立公示与公信原则 ;确立嘱托登记、宣告登记、公有物登记、区分建筑物登记、预告登记等登记种类     

Public (Interest) or Private (Gain)? The Curious Case of Network Rail's Status

This paper develops Whitehouse's 2003 examination of the creation of Network Rail, a case study of New Labour's attempt to operationalize the 'third way'. Significant changes have occurred since 2003 which make Network Rail's position as a private company with private sector debt appear increasingly anomalous. These changes include: the reclassification of the debt of another rail company from private to public, and the introduction of'imputed debt'into public sector debt measurement; new funding arrangements for Network Rail which make it heavily dependent on public support; and important rail regulatory policy changes. The paper analyses these changes, and revisits White-house's conclusions. In particular, this paper challenges Whitehouse's contention that Network Rail's creation led to the de facto renationalization of the railway infrastructure at a reduced public cost. The paper demonstrates that Network Rail is a very expensive mechanism for channelling public money to private companies, and argues that the Labour government's attempt to maintain the company's private sector status as part of its third way approach is ultimately untenable.     

Mandatory accounting disclosure by small private companies

This article analyzes how mandatory accounting disclosure is grounded on different rationales for private and public companies. It also explores technological changes, such as computerised databases and the Internet, which have recently made disclosure of company accounts by small companies potentially less costly and more valuable, thanks to electronic filing and universal online access to credit information systems. These recent developments favour policies that would expand the scope of mandatory publication for small companies in countries where it is voluntary. They also encourage policies to reduce the costs and enhance the value of disclosure through administrative reforms of filing, archive and retrieval systems. Survey and registry evidence on how the information in the accounts is valued and used by companies is consistent with these claims about the evolution of the tradeoff of costs and benefits that should guide policy in this area.     

Property and the Interests of Things: The Case of the Donative Trust

Within a liberal, ‘law of things’ understanding of property, the donative trust is seen as a species of gift. Control over trust property passes from the hands of settlors to beneficiaries, from owners to owners. Trust property, like all other property, is silent and passive, its fate determined by its owners. This article questions this understanding of the trust by showing how beneath the facade of ownership, the trust inverts the relation between owner and owned, person and thing. It analyses the relation that trustees, beneficiaries and settlors have to the trust property and argues that the role of each of these parties can be shown to consist in furthering the interests of the trust property rather than their own. It claims that this protects things from their owners at the same time as it ensures these owners’ ongoing care towards the things they own. This raises questions about the trust’s status within the institution of private property, justified as it is by the human autonomy it is said to enable.