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Moroz Maxim Igorevich, Baltic Federal University name of I. Kant, Graduate student faculty “Civil Law and Procedure» E-mail: meg8639@mail.ru, m.moroz@sodru.com
Comparative applied research problems of legal regulation of trust agreements
Abstract: Analyzes the need for integration changes in the legislative regulation of trust agreements. Proposed amendments to the Civil Code of the Russian Federation, which reduce the number of lawsuits related to the Trust Deed. Integrated into the Russian legislation methods of legal regulation of trust agreements in the historical and territorial legal system.
Key words: trustor, trustee, Regelsbergerg model, Treuhand, trust management.
Institute of trust agreements used as a legal mechanism for the implementation of the powers of possession and use of property for the benefit of the owner by a third party, usually a professional manager, in all legal systems and countries. With the globalization of economic processes, harmonization of legal norms, the development of national standards of trust, in law enforcement - oriented interactions with foreign business entities requires a multiplicity of approaches to property management in developed legal systems. In Russia, there is an increasing number of cases of manipulation legislation regulating property trust. Let's research the difference in the approaches to the rights and duties of trustees in various Western countries.
The materials of the Russian judicial practice there are cases where the creditors in court proceedings obtained a judgment that the property held in trust can not be arrested. According to German law, the responsibility for management of the property distributed by function and the trustee is the owner and the situation with the claims of creditors, the trustee satisfies the claims against the distributed function. In case of submission of additional claims on the property subject to the function to the obligations under administration or partial protection against third parties, trustees claims in the event the lender material requirements that are not attributable to the function on relations with creditors.
In German law defines the obligations of the trustee, which is in Chapter 53 of the Civil Code of the Russian Federation [1] only interpreted the term “ due diligence“. Constantly evolving as a result of court cases and the subjective perception of law- court the term “due diligence “, reflect the need to integrate the hierarchy of the obligations of a trustee of Western countries. For example, in Chapter 242 of the German Civil Code [2] lists the requirements of the trustee, which include: the credibility and integrity of the property trust management. The basis of their in-
terpretation is to list an exhaustive list of rights (numereous clausus), through the allocation of such rights as blocks:
• The obligation to follow the instructions of the trustor;
• The duty of prudence trustee.
To prevent the amount of litigation between the trustees and bogus legal structures can refer to Ferdinand Regelsbergerga model, which was first established in German law the difference between de jure and de facto, the identification of which reduced the opportunities for trustees to circumvent the law. Legal implications of this model have been investigated on the basis of the Swiss Civil Code (ZGB) [3, 45]. For example, Article 717 (ZGB) states ban the pledge property until the mortgaged property is not transferred to the pledgor. Thus, in Switzerland revealed a low percentage of fraudulent activities through the process of de jure and de facto collateral property in trust.
On the expenditure side trustee special role occupied by the tax regime established for trustees. Similarity of chapter 53 of the Civil Code of the Russian Federation [1] with the Swiss regulation of Direct Taxes (DTA) and the Law of tax harmonization (TNA) [5, 74] is to consider the trustee taxable income, but the difference is allocated to the payment of vehicle tax trustee. In Switzerland, to reduce the incidence of the tax — reduction of the taxable base wage scale depending Catalonia pays tax on transport only the trustor, while in Russia and Germany trustee. Also in Russian law there is no exception for taxation of gifts in trust management of property, which are present in the Swiss legislation. Given that there are different types of taxation: depending on the rights granted to the beneficiaries, revocable right (discrete irrevocable right) and irrevocable right (lockable) [8, 43], applying the discrete irrevocable rights, property is taxable only in the time of payment after the distribution of the property trustee, as beneficiaries sometimes do not even know that they are beneficiaries under the trust management agreement.
In relation to income trustee proportionality which is not established in Chapter 53 of the Civil Code of the Russian Federation, an innovative way of ranking proportions would rate for legal separation: Fixed, if successful, combined. For example: fixed — as a reward depositories establish a specific proportion of the payment. For an article in 1023 is due on the editor, which allows a different procedure (source) of remuneration and reimbursement of necessary expenses to the trustee. Should take into account the experience of legislative regulation of the institution of the trust in the Anglo-Saxon legal system [3, 54], since the institution currently has more development as trust management. The Russian Federation has a negative experience with introduction of the institution of the trust with the indigenous difference with respect to the property of different legal systems, as under English law may be somewhat eligible owners simultaneously. With the adoption of the new Civil Code, eliminating the trust mechanisms contributed to the reduction of litigation, but also ruled out the possi-
bility of improving the rule of law in accordance with the requirements of economic globalization, which are governed by the Anglo-Saxon legal family. Optional full use of the trust laws relating to another jurisdiction, as the Italian scientist Professor Muro magnifier, proving that it is possible for the recognition of foreign trusts Gaak Convention and enactment of the place of settlement (in most cases English law). Since Luxembourg adopted the approach in Switzerland calls for a more open consideration of trust management.
The difference with respect to the split property in the continental system and the Anglo-Saxon manifested in different attitudes to the distribution of property kings feudal state, which has the right of direct ownership (dominium directum) and vassals with rights of direct participation (dominium utile). Thus, in accordance with the ius commune vassal to carry out transactions on the merits as a user of the feudal land, and received the right to participate to use other people’s property for income generation (ususfrustus). In accordance with Tripartitum property management was necessary statement to an official, the registration of more than 50 HUF [9, 92], bail on feudal ownership and permission of the king. Thus, the historical foundation of the Institute fiduciary requires that in Chapter 53. Paragraph 4 ofArticle 1012 demarcate transaction procedure substantially (ad rem) and transfer things like procedures that confer different rights trustee for the state registration of trust property. This Article should specify whether to print DU (trustee) for all contracts fiduciary in Article 1012, no exceptions. Including requires secure the rights of the bunch transactions only after the registration of the transfer of property, but consider the contract concluded with the transfer of property in trust.
The Russian legislation would be enough to make a modern interpretation of the responsibilities and rights of the trustee, the mechanisms of taxation and interest in respect of the trust management and measures to reduce fraud for the normal functioning of the institution of trust management. Comparative legal research has relevance not only for the development of science civil rights, but also for the development of law enforcement, given the increasing interaction of Russian business with foreign partners. Upholding the remuneration trust management, the use of law enforcement experience contracts in Switzerland and Germany with another method of taxation will increase the effectiveness of trust agreements. Clarifying obligations trustee will provide fewer litigation. Using German law and Rogelsberg model [4, 3], will allow both the trustee and trustor minimize risks.
Necessary to restrict the rights of a trustee in relation to third parties and to establish torts for trustees relating to damage caused to third parties. Since Article 53 of the Civil Code of the Russian Federation in 1026 need to make a point that there is no right to recover damages for the loss transferred to the management of the trust property for the purpose of reference information trustor with the potential risks
associated with the fiduciary management of his property. Proposal to amend the Russian legislation is based on the doctrine of Treuhand [5, 72], which appeared in German law and had the same obligations as the legal consequences of essentially where property rights are transferred to the principal trustee. Described property rights should be limited in time and approach to the use of the property, as well as trustee obligations arising from the management of this property. It should be specified in Article 1020 of the Civil Code of the Russian Federation 53 responsibilities of the parties in a fiduciary capacity for harm caused to third parties at the time when the property was in a fiduciary capacity.
References:
1. Civil Code (Civil Code) from 26.01.1996 N 14-FZ - Part 2.
2. Coing H.: Europäisches Privatrecht I.
3. Csilla I. - G. KOMAROMI - T. SÄRKÖZY: Kommentar az hj privatizacios törvenyhez. (Commentary to the New Act of Privatisation.) Edited by.: T. SÄRKÖZY, Budapest, 1995. p. 147., And T. SÄRKÖZY: Rendszervaltas es privatizacio joga. (Law of Transition and Privatization.) Budapest, 1997. p. 259.
4. Dirk Andres Insolvency Statute; c£, in Jörg Nerlich/Volker Römermann (eds), Insolvenzordnung, § 47, n 40 (Munich, Verlag CH Beck, 22nd ed 2012).
5. Eckhardt F.: Magyar alkotmany es jogtörtenet. (Hungarian Constitutional and Legal History). Budapest, 2000. p. 313.
6. Hagen Hof, in Werner Seifart/Axel Freiherr von Campenhausen (eds), Stiftungsrechts-Handbuch, § 36 Unselbständige Stiftung, n 163 (Munich, Verlag CH Beck, 3rd ed 2009); more restrictive Achim Westebbe, loc. cit., 144-150.
7. Kendrick v. Ray, 53 NE 823 (Mass. 1899).
8. Larenz Karl/Manfred Wolf, Allgemeiner teil des burgerlichen rechts §21, n 32-41 (Munich, Verlag CH Beck, 9th ed 2004).
9. McConnell Garrott, 14 SW 256 (Ky. 1923);
10. Sandor Istvan, Ph. D. associate professor, Head of Department of Civil Law, Overview of the Legal Models of Trust Management in Private Law.
