China’s Trust Law is a high-level and unified trust system, which builds the legislative model and framework of China’s trust system, and ends the history of no basic law put in place in China’s trust practice. The promulgation of China’s Trust Law, with many highlights, is of great significance to China’s trust theory and practice. China’s Trust Law, which has been implemented for 20 years, has played an important role in regulating the development of trust practice. However, in future revisions of China’s Trust Law, it is necessary to broaden the scope of adjustment of the Trust Law, improve the rules on the trustee’s obligations and responsibilities, improve the trust registration system, clarify the ownership of the trust property, and perfect the trust regulatory system.
Keywords : China’s Trust Law, Trustee, Trustor, Trust Property,
Trust is one of the four major financial pillars in modern times. As an important financial service product, trust has the advantages of individualization and flexibility, and has an important role in promoting economic development. The trust industry has a broad market prospect. China’s Trust Law is a high-level and unified trust system, which builds the legislative model and framework of China’s trust system, and ends the history of no basic law put in place in China’s trust practice. China’s Trust Law has been implemented for 20 years. Reviewing the background of the promulgation of China’s Trust Law, summarizing the significance of its promulgation, examining its judicial application, and looking forward to its future development are of great significance to maintaining the vigor and vitality of China’s Trust Law and regulating the development of trust practice.
I. Background and Significance of the Promulgation of China’s Trust Law
(I) Background of the promulgation of China’s Trust Law
Trusts entered China as early as more than a hundred years ago. From trusts controlled by foreigners, to trusts established by private capitalists, to government-run trusts, to reforms, new establishments, shrinking and suspension after the founding of the People’s Republic of China, and to the resumption, chaos and rectification after the reform and opening-up, the trust industry has experienced a long and tortuous development process, which is closely related to the politics, economy, and culture of various periods. However, the vacancy of the legal system in the trust industry is undoubtedly an important reason for the failure of the trust industry to achieve steady development. Specifically, after the reform and opening up, various forms of trusts began to be established to open up financing channels. The trust industry, which had been suspended for 20 years in China, began to recover. Market demand drove the development of China’s trust industry. The economy took precedence, but the system failed to keep up. Due to the regulatory gap, there were problems such as unclear trust business, chaotic trust management, and mixed trust and bank operations. From 1982 to 2001, China’s trust industry underwent six rectifications. Later, after eight years of efforts of China’s Trust Law legislators, China’s Trust Law was promulgated and implemented in 2001.
Jiang Ping, professor of China University of Political Science and Law, pointed out that the Trust Law was promulgated under the following two important backgrounds: First, China’s Civil Law system was being constructed and improved, especially that the property law was being enacted; second, the social structure was undergoing profound changes, and the economic development was in the process of globalization. [1, p.3] The construction process of China’s Civil Law system and economic globalization are important backgrounds for the promulgation of the Trust Law, while the actual needs of Chinese economic development are also the background for the promulgation of China’s Trust Law. «After the reform and opening up, the economy continued to develop. Some regions became rich first, and the people accumulated surplus funds. China already had the material basis but still lacked the institutional basis for developing trusts.» [2, p.80] In addition, the British trust system had been a history of more than 600 years and the United States had a developed trust industry and the increasingly improving trust legal system. Since the 20th century, Civil Law Countries had also introduced trust systems and enacted Trust Law, as Japan and South Korea successively promulgated the Trust Law in 1922 and 1961 respectively, and China had already had trust practice, but it promulgated the Trust Law later than other Civil Law Countries, which was another background for the promulgation of China’s Trust Law. [3, p.53] Furthermore, from 1982 to 2001, the trust industry underwent six rectifications. The content of each rectification had its emphasis. A series of provisions were issued during the rectifications. Therefore, the problems found and experience accumulated in the six rectifications laid the foundation for the formulation and promulgation of China’s Trust Law, which was a unique background for the promulgation of China’s Trust Law.
(II) Significance of the promulgation of China’s Trust Law
First, it is of positive significance to regulating the development of the trust industry and invigorating economic development. The trust system is a high-quality wealth manager. Before the promulgation of the Trust Law, there were some significant problems in the development of China’s trust industry. The promulgation of the Trust Law is of great significance to solving such problems. First of all, the trust business was not clear and mixed with the banking business. «Most trusts handled the ‘trust business’ as ‘credit business’. Trusts remained in name only.» [4, p.5] What's more, «provision of financial management services for customers» became «wealth accumulation with high interest rates» or even «illegal fundraising» in a disguised form. [5, p.34] The trust business was seriously divorced from the nature of trust. The Trust Law, after promulgated, clarified the definition and types of trusts, distinguishing the trust business from credit business, and further realized the separate operation of the trust business and the credit business. At the same time, the Trust Law stipulated that «a trust must be set up for a legitimate trust purpose», to crack down on the acts of «wealth accumulation with high interest rates» and «illegal fundraising» in the name of trust. Secondly, the legal relationship of trusts was not clear. The Trust Law, after promulgated, stipulated the rights and obligations of trust parties, making the legal relationship of trusts clearer. Finally, the advantages of trusts failed to be fully used. The market demand for trusts was large. People could hand over their surplus property to professionals to obtain the economic benefits brought thereby. However, trusts before the promulgation of the Trust Law had narrow business scope. The Trust Law, after promulgated, stipulated issues such as the scope and independence of the trust property, and the reasons for the termination of a trust, highlighting the flexibility of trusts, which was of great significance to demonstrating the advantages of trusts.
Second, it is of significant significance to improving China’s trust-related legal system. After the Trust Law was promulgated, «Two New Regulations» (namely the Administrative Measures for Trust Companies and the Administrative Measures for the Assembled Funds Trust Schemes of Trust Companies) were promulgated in 2017; In 2010, the Administrative Measures for the Net Capital of Trust Companies were promulgated, and China’s trust industry entered a period of regulation by «one Law and three Regulations», which was a positive significance to transforming the phenomena of «laggard legislation, ambiguous classification, Put the cart before the horse, conceptual confusion and legislative tilt» [6, p.100–101] in China’s trust industry before the promulgation of the Trust Law. At the same time, the Trust Law is the basic law and the basis for formulating other relevant laws and regulations. The promulgation of the Trust Law provides guidance and basis for formulating relevant laws and regulations of the trust. [7, p.65]
Third, it is of positive significance for China to following the development trend of the world and integrating into the global economic market. «The investment trust in the Common Law system is irreplaceable by any system in the Civil Law system. By perfecting trust legislation, the unique role of this system can be played to promote enterprises to enter domestic and international markets.» [8, p. 76] British scholars said, «The trust system is the greatest system created by the United Kingdom.» The concept of trust originated from the «trust will» system in the Roman Law. [9, p.76] Around the 13th century, British religious organizations established the «USE» system. [10, p.117] In the middle of the 19th century, with the completion of the Industrial Revolution, British trust institutions were established one after another, and the trust system was formally established in the United Kingdom. From the late 18th century to the early 19th century, the United States introduced civil trusts from the United Kingdom. The United States developed the trust system from civil trusts to commercial trusts, and constructed a series of legal trust systems, which enabled the American trust system to function further, and the United States also became the most developed country in the trust industry in the world. At the beginning of the 20th century, Japan introduced the trust system from the United States. The trust industry developed rapidly in Japan, and the legal trust system was gradually improved. Japan became a country with a good development in the trust industry in the Civil Law system and a relatively sound legal trust system. China promulgated the Trust Law to promote the standardized development of the trust industry, which was the need to give full play to the advantages of the trust system to promote the further development of China’s finance and to integrate into the financial development trend of the world.
II. Highlights of China’s Trust Law
«China’s Trust Law is a high-level and unified trust system that covers and applies to all property management activities.» [14, p.14] The promulgation of China’s Trust Law has brought China’s trust industry into a new era in which there is a basic law to be followed. The legislative model, structure, and specific content of China’s Trust Law have been repeatedly scrutinized, and China’s Trust Law has remarkable highlights.
(I) Coordination between China’s Trust Law and China’s Civil Law
What is the relationship between China’s Trust Law and China’s Civil Law? At that time, some opinions questioned whether it was necessary to enact China’s Trust Law separately and «whether it was possible to include the provisions on trusts in the scope of China’s Civil Law when the General Principles of China’s Civil Law would be revised or China’s Civil Code would be formulated in the future», [3, p.54] so the relationship between China’s Trust Law and China’s Civil Law was an issue that needed to be thoughtfully considered when China’s Trust Law was formulated. First of all, what is the legal relationship of trust? Undoubtedly, the legal relationship of trust is essentially a «legal relationship of civil property», because the legal relationship between the trustor, the trustee, and the beneficiary in the legal relationship of trust is equal, so it is the legal relationship of property between equal subjects. Secondly, is the legal relationship of trust the same as the legal relationship stipulated in China’s Civil Law? Can the legal relationship of trust be classified into the property law or the law of obligation? [11, p.119] In this regard, the mainstream view is that the legal relationship of trust covers both the legal relationship of property and the legal relationship of obligation. [3, p.55] It covers the legal relationship of property as the trustee can manage and dispose of the property in its own name, and enjoy the exclusive real rights of the entrusted property; it covers the legal relationship of obligation as the beneficiary has the right to request the trustee to deliver the trust benefits, which is a legal relationship for people with the nature of obligatory claims. Finally, is there any relationship between China’s Trust Law and China’s Civil Law? As mentioned earlier, the legal relationship of trust is essentially a legal relationship of civil property, so China’s Trust Law is a special law of China’s Civil Law. The promulgation of China’s Trust Law has coordinated the relationship between China’s Trust Law and China’s Civil Law, and enriched the content of China’s Civil Law System. This is one of the highlights of China’s Trust Law.
(II) China’s Trust Law follows the trust legislative model of Civil Law System
«Building a legal framework for trust relations is the legal support for promoting the healthy development of China’s trust industry.» [12, p.107] At the beginning of the revision of the Trust Law, choosing what legislative model was a key issue. At that time, there were mainly two legislative models that could be used for reference in the world. One was the British model and the other was the Japanese model. The British model is manifested as a country’s Trust Law composed of multiple separate laws on trusts. For example, the Trust Law of the United Kingdom is composed of the Trustee Law, the Society of Charitable Trustees Act, the Judicial Trustees Act, the National Trust Act, the Public Trustee Act, the Recognition of Trust Act, the National Trust Agency Act, the Public Trustee Remuneration Act, the Trustee Investment Act, and the Charitable Trust Confirmation Act. Canada, New Zealand, Australia, Louisiana in the United States, and Hong Kong in China all adopted this legislative model. [13, p.62] The Japanese model was manifested as a unified code that covers the basic legal norms of each part of trusts and has an overall meaning. For example, Japan formulated the Trust Law, supplemented by some separate laws, such as the Trust Industry Law, the Loan Trust Law, the Corporate Tax Law, and the Securities Exchange Law. South Korea and New York, California and Minnesota in the United States all adopted this legislative model. China’s Trust Law learns from the legislative model of Civil Law System. China formulates a trust code named after the Trust Law and with overall and coordinated significance. This code establishes the basic framework of the Trust Law and includes the basic legal norms of trusts. Other separate trust laws formulated later according to actual needs need to be based on the Trust Law. Specific circumstances include «making separate provisions for several major trust products that are required by the society and the trusts are eligible to develop» and «making separate provisions for the management of trusts in different categories». [12, p.107] Formulating a unified Trust Law conforms to the legislative tradition of China as a Civil Law Country and the legislative style of the Chinese legal system.
(III) China’s Trust Law absorbs the trust legal principles of Common Law System
Chinese trust system is derived from western countries. When transplanting the Western trust law system, China formulated the Trust Law in light of its actual situation. China’s Trust Law has largely absorbed the basic legal principles of the British and American trust systems, making China’s trust system conform to the needs of China’s practice while maintaining the essence of the trust system. Specifically, the basic legal principles of British and American trusts absorbed by China’s Trust Law include: First, the principle of a legitimate trust purpose. [14, p.12] Article 6 of China’s Trust Law stipulates: «A trust must be set up for a legitimate trust purpose». China’s trust system not only affirms the autonomy of the parties’ will, but also follows the British legal motto that «a person who does not comply with the law cannot request legal protection». Second, the principle of trust publicity. «The principle of trust publicity balances between the personality of the trust property and the protection of the interests of third parties.» [15, p.103] The trust laws of the United States and the United Kingdom stipulate a publicity system for the trust property, and Article 10 of China’s Trust Law stipulates that the establishment of a trust shall be registered, embodying the principle of trust publicity in the British and American trust principles. Third, the independence of the trust property. Article 17 of the Trust Law stipulates that the trust property shall not be enforced unless it is an obligation created for the trust property before the trust is set up, or a debt incurred from the trustee’s handling of the trust affairs or the trust property’s due taxes. In the British and American trust systems, the principle of independence of the trust property is an important principle in the trust systems. Fourth, the inheritance of the trust property. Article 48 of the Trust Law stipulates that, unless there are restrictive provisions in the trust document, the beneficial right of the trust of the beneficiary may be transferred and inherited in accordance with laws. This is also provided for in the British and American trust systems.
(IV) China’s Trust Law contains China’s original provisions
Zhang Chun, professor of Nanjing University Law School, points out that part of China’s Trust Law is drawn from the trust laws of the four countries, namely the United Kingdom, the United States, Japan and South Korea, but some important rules are created by China, which are conspicuous by acting differently in the history of trust legislation in the world. [16, p.111] He compared China’s Trust Law with the Restatement of the United States’ Trust Law and Japan’s Trust Law, and summarized the original provisions of China’s Trust Law. In summary: First, in terms of trust establishment, China’s original provisions include «specifying a trust contract as a consensual contract» and «determining the registration as the condition for validating a trust». As far as «specifying a trust contract as a consensual contract», the United States and Japan have adopted the theory of real contracts. The traditional theory of western Civil Law is to specify a paid contract as a consensual contract and a free contract as a real contract, even though the trust system at the beginning of its rise was dominated by free civil trusts, but later paid commercial trusts gradually emerged. Therefore, China’s stipulation of a trust contract as a consensual contract meets the needs of traditional Civil Law theory and practice. As far as «determining registration as the condition for validating a trust», the United States’ Trust Law does not provide for this. Japan’s Trust Law specifies registration as the condition for countering a trust. China’s these provisions are intended to «implement national supervision of relevant trusts». Second, in terms of the trust property, China’s Trust Law stipulates that the trust property for which the trustor is the only or joint beneficiary shall be deemed as the heritage or liquidation property of the trustor when the trustor loses his/her personality.
III. Judicial Application of China’s Trust Law
China’s Trust Law has many highlights, but there is no perfect law in the world. New problems and challenges in practice make the original legislative foundation change. Rethinking of judicial application is an important way to promote the continuous improvement of law. The 20th anniversary of China’s Trust Law plays an important normative role in its implementation, but it has also exposed something to be improved. For example, the limitations of the scope of adjustment of China’s Trust Law and the ambiguity of trustee’s constraint rules in the commercial trust. These issues need to be improved in the future revision of China’s Trust Law.
(I) Limitation of the adjustment scope of China’s Trust Law
«A trust is a transaction about how trust assets are managed and distributed.» [17, p.627] According to the relevant cases, there are many cases not in the name of trust in practice, but in fact there is the reality of trust. Of course, courts often do not apply the Trust Law to judge these cases, and more apply the Contract Law to judge these cases. But these so called «asset entrusted management contract» «entrusted financial contract»«entrusted contract» «entrusted investment contract» «cooperative investment agreement», and even part of the cases are «loan contract», in fact, these are trust, but the trust rules are less applicable in the virtual trust legal relationship. There is a typical cases, «Wuyi Industrial Company v. Tianli Investment Company», which is a financial management contract dispute, which’s the second instance judged by the Supreme People’s Court of China. In this case, Wuyi Company and Fujian China Construction Engineering Company, as the entrusting party, have signed a series of contracts with Tianli Investment Consulting Company and Tianli Investment Company, including a series of Treasury Bond Entrusted Management Contract, Cooperative Investment Agreement and Asset Entrusted Management Contract, Each contract provides a minimum return of principal and annual return of 13 % -15 %. The trustor entrusted a total of 160 million yuan of Treasury bonds to the trustee for asset management. Afterwards, the trustee cannot repay the principal and pay the guaranteed income within the period agreed in the contract. Therefore, the trustor and the trustee have signed the «160 million yuan Debt Payment Agreement» and the «Payment Agreement». However, the trustee is still unable to repay the principal and interest under the two repayment agreements. Then the trustor sued. [18, p.3–5]
The focus discussion in this case is the nature of the nineteen underlying contracts, which the trustee asserted that the nature is loan contract, intended to negate the effect of the guaranteed income clauses in the 19 contracts. In this regard, Fujian Province High People’s Hourt, as the court of the first instance, believes that lending relationship is the borrower transfers currency ownership to the other party in the contract, but the bond ownership in this case of the 19 contracts did not transfer, the trustee can freely manage the assets in the trustor’s account, so the nature of the 19 contracts is entrusted financial contract. [18, p.5] The author believes that the 19 contracts are typical trust legal relationships, which are essentially property management behavior adjusted by the Trust Law, since the trustee management assets to make income, and the trustee also actually occupy the underlying assets, operating assets, collecting the income of the underlying assets. There is a trust relationship between the two parties in the contract, and the trustee undertakes the trust obligation, so the 19 contract is trust contract. Besides, in the 19 trust legal relationship, the trustor is the beneficiary, therefore, this trust contract belongs to the self-beneficial trust.
With the rapid development of China’s economy, people’s property income increases, and the demand of entrusted financial management has also increased significantly, but there are many disputes about the legal nature of entrusted financial management contracts. Li Yongxiang, judge of the Supreme People’s Court of People’s Republic of China, proposed in the Trial Decree of Entrusted Financial Management Cases, «Entrusted financial management is an independent legal relationship, and it is a new property management system.» [19, p.62] There are also views that entrusted financial management should be divided into two different legal norms, as «entrusted» and «trust». [20, p.92] Others believe that «the essence of entrusted financial management is a complex property management arrangement, there is an urgent need to unify the legal norms and standards to effectively protect the rights and interests of investors, which can only be interpreted under the rules of Trust Law.» [21, p.77] Admittedly, entrust professionals or professional institutions to conduct property management, this is the adjustment object of the Trust Law. Trust Law is flexible enough to adjust all kinds of entrusted financial legal relations. Trust Law contains the trustee’s investment obligations, standardizes the trustee’s investment right as well as the trustee’s clear and strict responsibility, which is more conducive to the protection of the rights and interests of the trustor and beneficiaries, so it is feasible and necessary to adjust by Trust Law. Trust has strong flexibility, since movable property, real estate, tangible assets and intangible assets can all be entrusted. In practice, there are a large number of real trust legal relationships without the name of trust. For these real trust, while the trustee violate the trust, the responsibility rules of trustee should also be applied.
(II) Ambiguity of trustee’s constraint rules in China’s Trust Law
From the perspective of the classification of trust, commercial trust is the main form of trust in China. Scholars have made different definitions regarding the commercial trust. Lai Yuanhe and Wang Zhicheng, Professors of Taiwan University Law School, believe that commercial trust refers to «the investor does not operate the business in the way of establishing a company, but in the way of trust. The trustee undertake the overall management, in order to operate specific undertakings. The investor, as the beneficiary, receives the distribution of the proceeds of the trust property.» [22, p.41] Wang Wenyu, Professor of Taiwan University Law School, views that, «commercial trust is different from the traditional meaning of private trust or gift transfer behavior. A typical commercial trust usually does not involve that the trustor buy securities and transfer specific property to the trustee for the interests of his wife and children, but more for the trustors themselves’ interests.» [23, p.26] Liu Zhengfeng, professor of Yangzhou University, believes that, «the commercial trust is a private benefit trust organized by the trustee for business purposes, and the trust property is raised and operated by the trustee in commercial form.» [24, p.17] Above are some typical definitions of Chinese scholars about commercial trust. From the above scholars’ views about commercial trust, two basic characteristics of commercial trust can be roughly summarized: Self-beneficial and Commercial. Self-beneficial refers to the trustor sets up trust for their own interests. Commercial refers to the trustee is a commercial organization, specially engaged in trust investment. Therefore, pension trust, real estate trust, asset and securities trust can be classified as commercial trust, while trusts for the interests of spouses, children and other family members do not belong to the category of commercial trust. Trust are widely used in British and American countries, and family property management and transfer are the main types of trust. In China, asset trust is commonly used in practice, is the main kind of trust, and the use of family trust is relatively low, real estate trust, pension trust and other commercial trust in practice is higher than the use of family trust, as commercial trust is the main kind of trust in China.
«The existence of trust default depends on the trust behavior, not the investment performance.» [25, p.1181] It is behavior, not performance, as long as the investment decision is appropriate, the trustee is not responsible for the consequences. However, one significant feature of China’s commercial trust that can be summarized from the relevant commercial trust cases is that, in the commercial trust, the trustor attaches great importance to the investment performance of the trustee and ignores the investment behavior of the trustee. Before the implementation of strong regulatory measures in China’s securities market, it was a common practice to attach guaranteed income clauses or rigid payment clauses in commercial trusts. For trusts with additional guaranteed income clauses or rigid payment clauses, while the trustee cannot realize the minimum income clauses or rigid payment clauses, the beneficiary sued the trustee, and the litigation focus on whether the guaranteed income clauses or rigid payment clauses are effective. If these clauses are effective, then the issue focus on the trustee’s investment performance whether meet the expectations and damaged the beneficiary’s rights, but less evaluate the trustee’s investment behavior whether is appropriate from the financial analysis, also less analyze the trustee's investment behavior whether violated the prudent investment obligations. In China’s current commercial trust cases, heavy the trustee’s investment performance and light trustee’s investment behavior, this thinking mode reflects the fiduciary obligation, as the foundation of trust, did not totally penetrate into the the judicial judgment of commercial trust, which also reflects the value orientation in current commercial trust that the value of efficiency is higher than the value of security. The prudent investment obligation of trustee is an external manifestation of the trust fiduciary obligation, which contains the value of safety as well as the value of efficiency, and emphasizes that the value of safety is higher than the value of efficiency. Therefore, the phenomenon of emphasizing the trustee’s investment performance over the investment behavior also reflects that the trustee’s prudent investment obligation, an important part of trust, has been marginalized in trust judicial practice. Trust legal relationship contains its own particularity as well as the generality of contract, trust judicial practice regarded the trust disputes as contract cases, accustomed to adapt the general rules of contract to trust legal relationship. But the abstract rules of trustee’s obligations and responsibilities, that haven’t form into the specific judgment rules, are difficult to be reflected in the trust judicial practice.
IV. Conclusion: Outlook of China’s Trust Law
Derived from foreign countries, trusts started relatively late in China and experienced a period of inadaptability and chaos. Thanks to the efforts of Chinese Trust Law scholars, China promulgated the much-anticipated Trust Law in 2001. Although it is decades later than the United Kingdom, the United States and Japan, China’s Trust Law pools the wisdom and painstaking effort of Chinese Trust Law legislators. China’s Trust Law generally stipulates trust-related systems, with many highlights and some shortcomings. China’s Trust Law has been implemented for 20 years. With the continuous development of society and the further development of China’s trust industry, it is necessary to enact relevant laws and regulations for the legal vacuum in the field of trust, clarify the legal norms, and improve the legal norms that have caused many disputes and refutations. Revising China’s Trust Law has become one of the hot topics discussed by Chinese Trust Law scholars.
Looking back on the past and looking forward to the future, this is the foundation for the continuation of all departmental laws. The legal basis is the root cause why the trust can become one of the four financial pillars that accommodate human wisdom and unlimited imagination, and a scientific legal system can promote the thriving development of the trust industry. In future revisions of China’s Trust Law, it is necessary to broaden the scope of adjustment of the Trust Law, improve the rules on the trustee’s obligations and responsibilities, improve the trust registration system, clarify the ownership of the trust property, and perfect the trust regulatory system.
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