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Prof. Zhu Xiaozhe Gave a Lecture on the 471st Civil-commercial Law Frontier Forum: Adult Guardianship and Property Trust: The Comparison and Cooperation between Systems

  On the evening of November 19th, 2018, the 471st civil-commercial law frontier forum and the 11th AnTong forum titled "Adult Guardianship and Property Trust: The Comparison and Cooperation between Systems" was held in room 601 of Mingde Building in Renmin University of China (RUC). Zhu Xiaozhe, the professor of the law school of Shanghai University of Finance and Economics, gave a keynote speech. Zhao Lianhui, the associate professor of the law school of China University of Political Science and Law, Li Hao, the associate professor of the law school of Beihang University, Meng Qiang, the associate professor of the law school of Beijing Institute of Technology, and Xiong Bingwan, the assistant professor of the law school of RUC attended the forum and participated in discussions. The forum was hosted by Zhu Hu, the associate professor of the law school of RUC.

       
  After introducing four guests and showing gratitude to all attendees, Prof. Zhu started from the origin and methodology of the combination of adult guardianship and property trust, and delivered a wonderful report based on the introduction of the legal nexus of trust and guardianship.

       
  First, having analyzed the problems such as aging of population, the disabled and semi-disabled elderly, and the limitation of the variation of family structure and guardianship system, Prof. Zhu introduced the legal nexus of trust and guardianship after elaborating the details of case of Li Chunping Property Management Dispute. He pointed out the connection between property trust and guardianship, then he clarified the whole idea of the lecture and methodology of survey.
  Next, he introduced the system setting, kind and form of adult guardianship and contract trust, and compared them from the aspects of property management system, function and principle, emphasizing that the fiduciary duties that settlors gave to trustees, which was demonstrated by the property management system of trust, were much heavier than those of adult guardianship.
  Besides, he carefully elaborated the legal results of violating promissory guardianship obligation and trust duty, pointing out that whether the promissory guardianship obligation could be fulfilled after being violated had to be discussed and there was still some blank left in the relevant legislation. However, unlike the promissory guardianship obligation, trust duties had obvious differences among four aspects: fiduciary duties that settlors gave to trustees, the importance of fiduciary duties in trustee's all duties, the system restrictions on trustee when he used chances and status to seek profit, and the right subjects that asserting duty violation.
  Finally, based on the trust which was generated from the nexus of guardianship and trust, Prof. Zhu proposed the imagination of cooperating with adult guardianship system in the form of legal produce design and comprehensively demonstrated the possibility and feasibility of the cooperation between trust and adult guardianship through his observation about the current system in Shanghai Putuo district notary office on the basis of the nexus of guardianship and trust in property management.
  During the discussion, the associate professor Zhao recognized Prof. Zhu's views and shared her comments from the perspectives of the legal character of Trust Law, the relationship of trust and guardianship, the boundary of party autonomy and the changes of Family Law, which was related to the guardianship and trust system. He maintained that trust had the characters of both civil law and commercial law. The essence and theoretic basis of Trust Law was civil law and what made it special was Trust Law's status, just at the boundary of civil law, so it could be widely applied to in civil, commercial, financial, social and many other areas. As for the border of promissory guardianship party autonomy, she asserted that China's survey about Family Law was still insufficient and we might have to reconsider the court executive mechanism and decided whether to give the court more discretionary power in Family Law, in light of only trust law and civil law didnt enough to remedy trustee and guardian's absence.

       
  The associate professor Li Hao thought trust could play the role of superintendent of the guardianship in personal care in view of the adult guardianship system was function-oriented. In his opinion, trustees could fulfill caring function by choosing the caregivers or being professional or group guardian. Moreover, he analyzed the distinct between statutory and promissory guardianship, pointing out that the standard of institutions' statutory guardianship duty and their responsibility for violation didnt clear under the "general guardianship" background. Plus, he mentioned Prof. Zhu didn't offer solutions to the registration problems concerning promissory guardianship agreements and civil trusts.

       
  The associate professor Meng Qiang emphasized trust and guardianship must be differentiated in function, although they were complementary to each other. Besides, according to Trust Law of the People's Republic of China, trust was the relationship between private right subjects, but public authority intervened the field of guardianship to some extent, which should be taken into account when planning the system. Apart from that, trustee could be the superintendent of the guardian, and the guardian could also create trust directly, which was forgotten in Prof. Zhu's views. Finally, Prof. Meng agreed Prof. Zhu's imagination of the interaction between trust and guardian which was realized in the form of dividing person from property. He believed it would be conducive to easing the problem that the harm, guardians did to persons under guardianship, which was not serious enough to reach the degree to revoke their guardianship, wasn't regulated in the guardianship system. 

       
  The assistant professor Xiong Bingwan thought the attempt to separate person from property still had room for further study. On the basis of Prof. Zhu's idea of combining adult guardianship and trust, Xiong proposed to introduce agency by agreement to make comparison systematically in order to analyze the possibility of mixing agency by agreement, guardianship and trust. As for whether the promissory guardianship obligation could be allow to fulfill after being violated, he said it might lead to moral hazard if permitted.

       
  In the end, Prof. Zhu briefly responded the views shared by other professors and answered the questions from present students. The host, associate professor Zhu Hu expressed sincere gratitude to all attendees and the lecture ended in warm applause.

       



Editor: ZHANG Jiayun

 
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