CONSTRUCTIVE TRUST
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by: yorgi64
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CONSTRUCTIVE TRUST (trust) (English trust - confidence) - system of ratios at which the founder of a trust - the proprietor (sett-lor) allocates with the rights of the confidential managing director (trasti), and that, appearing in a role of the proprietor, the revenue earned nevertheless should give to the beneficiary (to the beneficiary}, operating in it, instead of in the interests (and the proprietor-founder and vygodopriobretatel-benefitsiar can coincide in one person). Thus it is considered, that each of the named participants of ratios of a trust in a definite volume has proprietary rights, i.e. each of them is the subject of law of the property. Such situation was born and developed in angloamerikanskom the right.
Mutual relations of the founder of a trust and the managing director assume high a degree of belief, responding certain submissions about "justice" which are produced by a special branch of an English case law - the equity law, added
In practice of court of the lord chancellor in a counterbalance to precedents of the ordinary courts constituting the common law. They give the chance to inspect operations of the managing director-tras properly. But division of the right into "common law" and "equity law" is not known by any law and order of continental Europe whereas Anglo-Saxon legal, the system in turn does not know division of the rights on real and liability (in this connection D.s. It is impossible to carry neither to real, nor to objaza - telstvennym to the rights).
From items of the continental European right any of participants D.s. Has no all collection of proprietary rights, but each of them saves for itself their any part, and the property right "is as though split" between several subjects. In the Anglo-American law and order such situation does not generate inconsistencies as there the right sobstvei-nosti consists of set of the various competences (units) capable in diverse combinations to give to one and a half thousand of variants of independent "property rights". These difficult constructions based on centuries-old traditions of Anglo-Saxon legal system and originating in the feudal law and order, are alien to continental legal system. One of its basic postulates - impossibility of installation of two identical property rights to the same property, explaining impossibility of "splitting" of the property right. The idea of "the split property", dominating in the European right during a feudalism epoch, has been denied in XIX century, having received replacement in the form of the theory of real rights.
Therefore the civil procedure law of the Russian Federation does not know institute D.s., but provides for the proprietor possibility to transfer the property in confidential control to other person, that as underlines the law, does not attract transition to the confidential managing director of the property right to the property transmitted to it.
Lighted.: Naryshkin R. L. A constructive trust in civic right of England and the USA. M, 1965.
Sukhanov E, And.
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