Constructive trusts: A civilian approach

Publication Type

Journal Article

Publication Date

12-2011

Abstract

The main purpose of this work is to provide a proper understanding of the English law of constructive trust for the civil lawyer in Korea. The work introduces seven cases in which trust arises by operation of law under English legal system: those cases are as follows: Dispositions in Breach of Trust; Recipient Liability and Dishonest Assistance; Breach of No-Profit Rule; Acquisition of Property by Killing; Mutual Wills; Vendor-Purchaser Constructive Trust; When Settlor/Doner Has Done Everything He Can. Lawyers in civil jurisdictions normally consider the trust arising by operation of law as a trust relationship similar to a declared trust. The work argues that it is a misconception. In fact, considering that a beneficiary"s right is commonlyregarded as a proprietary right in its nature, imposition of a constructive trust in some English cases actually denotes the fact that a proprietary right is generated by operation of law in order to prevent some unjust consequences in individual cases. And, a constructive trust even arises sometimes when trust property never exists (i.e.,in cases involving dishonest assistance and knowing receipt); this tells us that the person called constructive trustee in those cases is actually not a person obliged to hold an asset on trust for another, thus, not a trustee at all; rather, he only owes a duty that requires him to make some monetary compensation to the beneficiary; and this obligation is established by operation of law. Therefore, lawyers in civil jurisdictions need not to conceptualize the English constructive trust as something corresponding to a declared trust: The reason it has been called constructive trust in England is due to its unique legal history that had divided its court system into common law court and equitable court. Since Korea and other civilian jurisdictions have not shared the same legal tradition and history, civil lawyers must grasp its underlying structure; it is a mechanism by which either a proprietary right or a personal right is created by operation of law.

Keywords

Agenda trust, set doctor trust, resulting trust, legislation trust, court watering, court bonds, comparative method, institutional and binding type of the trust only the trust of, relief enemy and discretionary type indefinite, constructive trust, express trust, Trust the resulting, statutory Trust, proprietary right by the Operation of Law, personal right by the Operation of Law, comparative Law, the by Institutional Trust, the Remedial Trust

Discipline

Courts | Estates and Trusts

Publication

The Journal of Comparative Private Law

Volume

18

Issue

4(WN.55)

First Page

1263

Last Page

1308

ISSN

1229-5205

Publisher

The Korean Association Of Comparative Private Law

Additional URL

https://www.dbpia.co.kr/Journal/ArticleDetail/NODE01829265

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