The hidden cost of some trustees-trustee commissions

There is a widespread variation in trustees’ approachto the taking of commissions for investing trust money and therequirements to disclose these commissions to beneficiaries.The net result is that settlors, beneficiaries and their advisersneed to be aware that a trustee's remuneration may not be clear,even from a set of audited accounts and that there may be arisk of conflict between the trust terms and a duty or regulatoryobligation to disclose.     

... and then 25 years later

What started off in 1982 as a quiet family trust, 25 years laterhas turned out to be rather a cause célèbre. Atleast it might become so if the full report of a recent caseis as disturbing as the brief report which appeared in the Timeson 12 February 2007. Inadvertent distress and expense all roundwas caused where it appears that the settlors of a family trust,in 1982, purported to resign as trustees and appointed the InvestmentBank of Ireland (IOM) Ltd and an individual to be, interestingly,as the Times describes each as the sole trustees. Interestinglyboth were resident overseas. Presumably, there were tax planningmotives behind making the trustees resident outside the UK taxjurisdiction. It all went wrong and ended up with five beneficiaries and,the two more recently     

探索中国特色的反腐败之路

官员腐败是一种特别令民众痛恨的社会现象。其本质与盗窃、抢劫等犯罪并无差异，而且是借助官员手中权力实施的，因此对社会危害更大。一个人偷偷地把他人的钱财拿走了，据为已有，那是盗窃；一个官员利用职权把大家的钱财拿走了，据为己有，那就是贪污。一个人以暴力相威胁，让他人把钱财交给自己，那是抢劫；一个官员以职权隐含的暴力相威胁，     

Disentangling privacy from property: toward a deeper understanding of genetic privacy

With the mapping of the human genome, genetic privacy has become a concern to many. People care about genetic privacy because genes play an important role in shaping us--our genetic information is about us, and it is deeply connected to our sense of ourselves. In addition, unwanted disclosure of our genetic information, like a great deal of other personal information, makes us vulnerable to unwanted exposure, stigmatization, and discrimination. One recent approach to protecting genetic privacy is to create property rights in genetic information. This Article argues against that approach. Privacy and property are fundamentally different concepts. At heart, the term "property" connotes control within the marketplace and over something that is disaggregated or alienable from the self. "Privacy," in contrast, connotes control over access to the self as well as things close to, intimately connected to, and about the self. Given these different meanings, a regime of property rights in genetic information would impoverish our understanding of that information, ourselves, and the relationships we hope will be built around and through its disclosure. This Article explores our interests in genetic information in order to deepen our understanding of the ongoing discourse about the distinction between property and privacy. It develops a conception of genetic privacy with a strong relational component. We ordinarily share genetic information in the context of relationships in which disclosure is important to the relationship--family, intimate, doctor-patient, researcher-participant, employer-employee, and insurer-insured relationships. Such disclosure makes us vulnerable to and dependent on the person to whom we disclose it. As a result, trust is essential to the integrity of these relationships and our sharing of genetic information. Genetic privacy can protect our vulnerability in these relationships and enhance the trust we hope to have in them. Property, in contrast, by connoting commodification, disaggregation, and arms-length dealings, can negatively affect the self and harm these relationships. This Article concludes that a deeper understanding of genetic privacy calls for remedies for privacy violations that address dignitary harm and breach of trust, as opposed to market harms, as the property model suggests.     

Restoring Trust: Plachimada,the Human Trust and Anticipatory Negligence as Restorative Justice

This paper argues for proleptic restorative justice in the area of the environment in the form of a ‘human trust’. Drawing inspiration from the Roman public trust, the human trust insists that some ‘goods’ are so important that they can neither be owned nor spoiled; rather, they must be protected. In order to explain this model, water rights will be used as an example, specifically, the case of Plachimada’s battle with Coca-Cola over the use of local ground water in Kerala, India. This case allows consideration of the protection of water for people, the ongoing privatization of natural resources, and the strength of property rights. The human trust questions the merit of seeing the environment as property or in economic terms. Moreover, the human trust urges proleptic restorative justice, as in the case of the environment, restoration after the fact is often impossible. The potential harm is so extreme that one can argue for an action in tort of ‘anticipatory negligence’, a development of the quia timet injunction.     

《中华人民共和国信托法》中的创造性规定及其评析

《中国信托法》中的重要的创造性规定包括 :将信托合同规定为诺成合同 ,确认信托财产所有权由委托人享有 ,将登记确定为信托的生效要件 ,将委托人的三项重要权利规定为其以自己的行为干预信托的权利 ,为委托人增设因其重大侵权行为而变更受益人或者解除信托的权利 ,为受托人增设对信托的保密义务 ,将受益人不确定的信托规定为无效信托 ,将信托监察人制度限定适用于公益信托并规定公益信托应当设置信托监察人。     

韩非“以法为教”的德化思想论

韩非认为,无论是人的素质,还是人性的现实,都处在不甚完美的境地,因此,施行“以法为教”的德化是必要的。在营筑德化的具体过程里,韩非重视的不是微观问题的辨析,而是宏观视阈层面上机制的建设。在内在的方面,依据万物“有所宜”而因循万物特性的方面受到推重,因循不是简单的消极行为,在“因物以治物”的二维动宾语言结构里,它仍然体现着行为主体的积极主动性。在外在的方面,通过在“形名参同”的实功、实效轨道上,设置了由因能以任、称功赋禄、赏罚组成的互动链,为万物“宜其能”提供了有力的支撑,并为万物“有所施”创造了条件,同时在动态上又为万物“处其宜”形成了自然的驱动力,并最终完成德化活性化的追求。其意义积极而深远,值得借鉴。     

产权式酒店经营中投资者利益保护探究

投资者将产权式酒店统一委托给酒店管理公司进行经营,信息的不对称性,决定了投资者的弱势地位。如何对酒店管理公司进行监督,投资者如何更换酒店管理公司以及如何退出产权式酒店的投资等问题是产权式酒店在经营过程中必然面对的问题。本文建议,应根据我国物权及信托的相关法律法规的规定,有针对性地提出解决方案。     

Gangs and governance in Russia: the paradox of law and lawlessness

ABSTRACT

The paper addresses the nature of gang governance. It questions the notion that gangs regulate social and economic transactions and create stable orders in certain territories. It shows that, while presenting themselves as upholders of the ‘law’ in their territory, the gangs also create a climate of uncertainty and fear. The gangs manipulate their own unwritten rules and set up traps for residents and businessmen. These traps are designed to deprive non-gang civilians of presumed rights and identities and extort their money. The paper uses Schmitt’s notion of ‘state of exception’ and Agamben’s idea of ‘bare life’ to explain how gangs function.     

公益信托的法律特征及我国模式的探索

公益信托主要是一种以公益为目的而设立的信托,其具有目的公益性、一律实行要式主义、适用力求近似原则解决其信托财产或其他剩余部分的有效利用问题、实行税收优惠的特征。我国公益信托的发展尚处于起步阶段,需要积极探索公益信托的中国模式。     

Mothers of children removed under a care order: outcomes and experiences

ABSTRACT

Focusing on accounts by women who have children taken into care, this paper reports on a socio-legal case study in England, investigating the life experiences of nine mothers, whose children have been made subject to care orders under the Children Act 1989. In particular it considers the women’s experiences of their relationships with their own mothers and places this within the context of the mothers’ own experiences of having their children taken into care. Drawing on free association narrative interviews, the study focuses on the mothers’ accounts of long-term harm that began in their childhoods, especially their experiences of their mothers’ own difficulties and of their experiences of harm. It highlights the impact of relationship difficulties between mother and child, and questions how the legal concepts of harm and reasonable parental care are defined and deployed. In conclusion, it demonstrates a need for the legal framework to address children’s experiences of harm in a more intergenerational and intersubjective way. It highlights a new approach, suggesting consideration of harm, reasonable parental care and welfare to involve an increased concentration on the welfare of mothers and the relationship between mother and child, akin to an intersubjective and intergenerational approach to harm.     

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     

What’s Wrong with Penal Populism? Politics,the Public,and Criminological Expertise

This article discusses “penal populism” and its conflict with criminological expertise. It considers the proper balance between professional expertise and community sentiment in the formulation of crime control and penal policy—especially in respect of policy measures where moral rather than instrumental considerations are involved. It raises theoretical questions about the nature of “public opinion”—does it exist other than as an artifact of survey instruments?—and its proper role in a democratic polity. And it considers the professional responsibility of criminological experts in relation to policy formation and political debate. The performance of public health experts during the COVID pandemic is presented as an instructive case in point. Can criminology establish itself as a credible form of social scientific knowledge worthy of public trust? And how should criminologists comport themselves when engaging with questions of public policy and political controversy?

     

Public bads and private firms: efficiency and sustainability with different allocations of voting rights

A number of authors have proposed that firms can internalize externalities through their shareholders. This paper investigates this proposition, focusing on public bads. Theoretically it is, indeed, possible that shareholders decide that the firm reduces its public bads at the cost of profits, thereby increasing Pareto-efficiency. One of the factors which help determine the size of the reduction is the number of shareholders with a (very) small stake in the firm. The greater this number, the greater the reduction will tend to be. It is shown that the reduction in public bads can be reversed by takeovers, but under special conditions only while takeover defences may also be used. Unfortunately, there are a number of factors which significantly limit the internalization of external effects in practice. The paper also discusses a change in the legal share-voting system whereby the direct owners of the shares (i.e., the shareholders) no longer possess, in their capacity of direct owners, the legal right to vote at the General Meetings of firm owners. Instead, these rights become the property of the beneficial owners of the shares (i.e., the people who ultimately provided the money to buy the shares), but on the condition that they delegate their voting rights to a proxy voting institution. This institutional innovation may significantly increase the internalization of external effects among other things because many beneficial owners have a tiny stake in the firm.     

The Dematerialization of Print and the Fate of Copyright

This paper contends that copyright is a product of the invention of print. Before that time, writings were seen as part of the common heritage of humanity and if someone copied a book by hand they deserved the right to own the copy. The digitalization of not only print, but also intellectual products such as music, graphics and video has caused problems more deep-seated than many copyright lawyers would admit to. In fact, a paradigm shift has occurred with information at the core. The older paradigm comes from the world of Descartes and Newton and focuses on material things. The legal system of that era correspondingly focused on material things, making it impossible to own, possess or have any other real right in incorporeals. To cover intellectual property a special subsystem of law was designed which is now starting to show the strain. It is argued that information ages quickly and by over-protecting it one loses the value of the asset. Power and wealth will come from transmitting and adding value to information. In this regard personal rights might be more valuable than real or intellectual property rights, unless the latter adapts to change more rapidly.     

Judgments about the right to property from preschool to adulthood

Legal theorists argue that the constitutional right to property is defined, in part, by the property beliefs of the community, and how they change; yet little is known about these beliefs. In each of the three present studies, subjects aged 4 to 15 years, and adults, rated story characters who refused to return objects to their previous owners. Subjects under 10 did not clearly differentiate loss or destruction of one's own from another's property (study I), or the rights of persons who acquired possession by theft, loan, finding, or gift (study II). Creative labor was considered a more legitimate basis for possession by 15-year-olds than by 10-year-olds or adults (study III). These results support the idea that children understand “own” in the same way as adults understand “on loan”.     

Going to the dogs?

Corporate trustees administer assets worth billions and directorsof these trusts expect to carry on their work without fear ofpersonal liability to beneficiaries other than in exceptionalcases whose ambit is limited and well understood. The emergence in recent years of an action known as the ‘dog-leg’claim threatens this certainty. The claim is brought by beneficiariesfor breach of trust generally, directly against the trustees,where none of the usual grounds for personal liability is evenalleged. The claim relies on being able to prove that the corporate trustee'srights against directors for breach of director's duties areheld by the trustee not for its own benefit, but for the benefitof the trust. This article explains how the claims are put togetherand why, fortunately, in practice they will rarely (if ever)succeed. The recent case of Alhamrani v Alhamrani has stimulatedthis appraisal.     

El Título en la Mano: The Impact of Titling Programs on Low‐Income Housing in Texas Colonias

This article analyzes the impact of The Community Resources Group Receivership Program undertaken from 1998 to 2002 that provided clean property titles to residents in several informal housing colonias (subdivisions) in South Texas. Survey data were gathered from 260 low‐income households comprising two populations: those who had secure title from the outset, and those who were beneficiaries of the land titling program. Focus group interviews were conducted to explore how the beneficiaries construct the meaning of ownership before and after title “regularization.” Formal titling consolidates understandings of absolute property relations in comparison with de facto rights born of use (legal or not), which strengthens people's sense of self‐esteem and potential for political involvement. We found that, contrary to conventional wisdom, title provision per se appears to have little direct impact either upon home improvement or upon residents' receiving enhanced access to credit and financial services. We also found evidence that informality and illegality is likely to reemerge as owners die intestate, and as they revert to informal land market property transfers.     

Ownership Rights and the Rites of Ownership

Using condominium owner and landowner narratives about their property, I consider how people answer the question, What does it mean to own something? These property narratives are framed around three sets of social practices, myths, and beliefs which I call rites of identity, rites of settlement, and rites of struggle—the rites of ownership. According to these narratives, ownership requires that the person possessing the property carry out these rites. Their sense of entitlement—ownership rights—is framed by these rites. Following the rites makes one a deserving property owner. Property rights are seen as protectors against arbitrary, unpredictable changes in status that violate these owners, sense that they are entitled to keep what they had worked so hard for and planned for so long. I conclude with a discussion of the value of property narratives for understanding the link between law and culture.     

Marr v Collie: The Ballooning of the Common Intention Constructive Trust

The decision in Marr v Collie represents a significant expansion of the common intention constructive trust doctrine. Unsupported by authority, it relaxes the requirement that the property be acquired for a ‘domestic’ purpose, and widens the doctrine to encompass all property, whether real or personal. The decision's abrogation of the ‘purpose’ restriction redraws the line between the common intention constructive trust doctrine and the presumed resulting trust doctrine and expands the former to the greatest possible extent. This exacerbates a doctrine already apt to adversely affect both individual litigants and the justice system as a whole, and which creates incongruous theoretical divisions within the law of intentionally created trusts. As the doctrine is reliant on the proposition, unsupported by authority or legislation, that conveyance of a title to land into joint names necessarily gives rise to a trust, it is hoped that a future apex court will reconsider the doctrine's proper scope.