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The legal nature of a trust (legal and comparative analysis)
Urban, Ondřej ; Beran, Karel (advisor) ; Ondřejek, Pavel (referee)
59 ENGLISH ABSTRACT The purpose of this thesis is an interpretation of English trust law, including historical context and comparative application of the acquired knowledge on the Czech legal institute of "svěřenský fond". A critical assessment of the legal regulations governing "svěřenský fond" is followed by theoretical consideration of its legal nature. The work, except the introduction and conclusion, is divided into four main chapters, with the first chapter dealing with the historical roots of the trust. The reader will become familiar with the Roman fideicomissum, the English legal institute called "use" and its influence on the emergence of the law of equity. She will also learn how use turned into trust and what the economic reasons for such a change were. The second part defines the English trust, describes it and clarifies the three main conditions for its creation under applicable law - the three certainties. Further, it will explain who the settlor, trustee and beneficiary are, along with their rights and obligations. It also focuses on the three main types of trusts. Express trusts, created by an act of the settlor and the resulting and constructive trusts, which are created by decision of the courts. The third chapter concerns itself with the "svěřenský fond", as stipulated by the Czech Civil...
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Trust under Common Law versus the institute of "Svěřenský fond" under the new Czech Civil Code
Horn, Kryštof ; Elischer, David (advisor) ; Dvořák, Jan (referee)
The purpose of this thesis is to describe the functioning of trust in the common law jurisdictions and its expansion to the civil law countries. It also focuses on the brand new Czech institute "Svěřenský fond" (trust fund) introduced by the new Czech Civil Code and aims to analyse its nature in regard to its trust context. The thesis is composed of three chapters, each of them dealing with different set of "trust" issues. Chapter One is descriptive. It deals with the history of fiduciary relationships in the Roman, medieval, Austro-Hungarian and Czechoslovak law as well as the current statutory provisions governing administration of property of others and trust funds in the Czech Republic. It also addresses a number of current ambiguities that have arisen from the recent re-codification. The Second chapter is comparative. Part One includes introductory remarks concerning comparative law issues. Part Two describes the nature and functions of trust in the common law jurisdictions and explains the trust taxonomy. Parts Three and Four provide an outline of several mixed jurisdictions as well as civil law jurisdictions and maps their approach to trusts. Chapter Three is analytical. First part examines the theoretical discrepancies in the civil law and common law notions of property along with other...
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Trust under Common Law versus the institute of "Svěřenský fond" under the new Czech Civil Code
Horn, Kryštof ; Šustek, Petr (referee) ; Elischer, David (referee)
The purpose of this thesis is to describe the functioning of trust in the common law jurisdictions and its expansion to the civil law countries. It also focuses on the brand new Czech institute "Svěřenský fond" (trust fund) introduced by the new Czech Civil Code and aims to analyse its nature in regard to its trust context. The thesis is composed of three chapters, each of them dealing with different set of "trust" issues. Chapter One is descriptive. It deals with the history of fiduciary relationships in the Roman, medieval, Austro-Hungarian and Czechoslovak law as well as the current statutory provisions governing administration of property of others and trust funds in the Czech Republic. It also addresses a number of current ambiguities that have arisen from the recent re-codification. The Second chapter is comparative. Part One includes introductory remarks concerning comparative law issues. Part Two describes the nature and functions of trust in the common law jurisdictions and explains the trust taxonomy. Parts Three and Four provide an outline of several mixed jurisdictions as well as civil law jurisdictions and maps their approach to trusts. Chapter Three is analytical. First part examines the theoretical discrepancies in the civil law and common law notions of property along with other...
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Fiduciary
Hollmann, Jakub ; Dvořák, Jan (advisor) ; Thöndel, Alexandr (referee)
Autor in this doctor thesis follows and explain the topic of Fiduciary and special institute which is Trust in Czech civil code. Thesis is devided into eleven chapters and explain functionality of Fiduciary and trust in Czech Republic. Because of recent debates of an amendment of Fiduciary in Czech civil code, autor explaining and analyzing trusts in comparison with other countries, e.g.: England, Quebec, France, Germany, Italy, Liechtenstein. In this comparision author explaining possibilities of new amendments and giving proposals of de lege ferenda ideas.
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Trust in Czech Law
Skuhravý, Jan ; Plíva, Stanislav (referee) ; Oehm, Jaroslav (referee)
During the legislative works on a new Civil Code for the Czech Republic, it has been proposed that the concept of trust be introduced into Czech law, largely by transplanting the concept of fiducie contained in the Civil Code of Québec. The thesis, after introducing the principal concepts of trust as known around the world today, whether in common law jurisdictions, civil law jurisdictions or mixed jurisdictions, describes the principal commercial uses of trust in trust jurisdictions and analyses the possibilities of current Czech law to replicate the trust function not using the trust. The thesis argues that the classical civilist objections to the possibility to implant true trust into civil law jurisdictions are largely unfounded in respect of the Czech legal system. The thesis further performs a comparative assessment of the Czech Civil Code proposal. It is argued that the legal construct at hand in the proposal is actually not trust, but a mere trust-like arrangement, as it lacks one of the trust's most salient features -- transfer of the trust property by the settlor to the trustee. Apart from that, the thesis analyses specific provisions of the proposal and subjects them critique. Based on this analysis, it introduces a number of proposals for the enhancement of the proposed provisions.
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Trust under Common Law versus the institute of "Svěřenský fond" under the new Czech Civil Code
Horn, Kryštof ; Šustek, Petr (referee) ; Elischer, David (referee)
The purpose of this thesis is to describe the functioning of trust in the common law jurisdictions and its expansion to the civil law countries. It also focuses on the brand new Czech institute "Svěřenský fond" (trust fund) introduced by the new Czech Civil Code and aims to analyse its nature in regard to its trust context. The thesis is composed of three chapters, each of them dealing with different set of "trust" issues. Chapter One is descriptive. It deals with the history of fiduciary relationships in the Roman, medieval, Austro-Hungarian and Czechoslovak law as well as the current statutory provisions governing administration of property of others and trust funds in the Czech Republic. It also addresses a number of current ambiguities that have arisen from the recent re-codification. The Second chapter is comparative. Part One includes introductory remarks concerning comparative law issues. Part Two describes the nature and functions of trust in the common law jurisdictions and explains the trust taxonomy. Parts Three and Four provide an outline of several mixed jurisdictions as well as civil law jurisdictions and maps their approach to trusts. Chapter Three is analytical. First part examines the theoretical discrepancies in the civil law and common law notions of property along with other...
|
|
|
The legal nature of a trust (legal and comparative analysis)
Urban, Ondřej ; Beran, Karel (advisor) ; Ondřejek, Pavel (referee)
59 ENGLISH ABSTRACT The purpose of this thesis is an interpretation of English trust law, including historical context and comparative application of the acquired knowledge on the Czech legal institute of "svěřenský fond". A critical assessment of the legal regulations governing "svěřenský fond" is followed by theoretical consideration of its legal nature. The work, except the introduction and conclusion, is divided into four main chapters, with the first chapter dealing with the historical roots of the trust. The reader will become familiar with the Roman fideicomissum, the English legal institute called "use" and its influence on the emergence of the law of equity. She will also learn how use turned into trust and what the economic reasons for such a change were. The second part defines the English trust, describes it and clarifies the three main conditions for its creation under applicable law - the three certainties. Further, it will explain who the settlor, trustee and beneficiary are, along with their rights and obligations. It also focuses on the three main types of trusts. Express trusts, created by an act of the settlor and the resulting and constructive trusts, which are created by decision of the courts. The third chapter concerns itself with the "svěřenský fond", as stipulated by the Czech Civil...
|
|
|
Fiduciary
Hollmann, Jakub ; Dvořák, Jan (advisor) ; Thöndel, Alexandr (referee)
Autor in this doctor thesis follows and explain the topic of Fiduciary and special institute which is Trust in Czech civil code. Thesis is devided into eleven chapters and explain functionality of Fiduciary and trust in Czech Republic. Because of recent debates of an amendment of Fiduciary in Czech civil code, autor explaining and analyzing trusts in comparison with other countries, e.g.: England, Quebec, France, Germany, Italy, Liechtenstein. In this comparision author explaining possibilities of new amendments and giving proposals of de lege ferenda ideas.
|
|
|
Trust under Common Law versus the institute of "Svěřenský fond" under the new Czech Civil Code
Horn, Kryštof ; Elischer, David (advisor) ; Dvořák, Jan (referee)
The purpose of this thesis is to describe the functioning of trust in the common law jurisdictions and its expansion to the civil law countries. It also focuses on the brand new Czech institute "Svěřenský fond" (trust fund) introduced by the new Czech Civil Code and aims to analyse its nature in regard to its trust context. The thesis is composed of three chapters, each of them dealing with different set of "trust" issues. Chapter One is descriptive. It deals with the history of fiduciary relationships in the Roman, medieval, Austro-Hungarian and Czechoslovak law as well as the current statutory provisions governing administration of property of others and trust funds in the Czech Republic. It also addresses a number of current ambiguities that have arisen from the recent re-codification. The Second chapter is comparative. Part One includes introductory remarks concerning comparative law issues. Part Two describes the nature and functions of trust in the common law jurisdictions and explains the trust taxonomy. Parts Three and Four provide an outline of several mixed jurisdictions as well as civil law jurisdictions and maps their approach to trusts. Chapter Three is analytical. First part examines the theoretical discrepancies in the civil law and common law notions of property along with other...
|
|
|
Trust in Czech Law
Skuhravý, Jan ; Plíva, Stanislav (referee) ; Oehm, Jaroslav (referee)
During the legislative works on a new Civil Code for the Czech Republic, it has been proposed that the concept of trust be introduced into Czech law, largely by transplanting the concept of fiducie contained in the Civil Code of Québec. The thesis, after introducing the principal concepts of trust as known around the world today, whether in common law jurisdictions, civil law jurisdictions or mixed jurisdictions, describes the principal commercial uses of trust in trust jurisdictions and analyses the possibilities of current Czech law to replicate the trust function not using the trust. The thesis argues that the classical civilist objections to the possibility to implant true trust into civil law jurisdictions are largely unfounded in respect of the Czech legal system. The thesis further performs a comparative assessment of the Czech Civil Code proposal. It is argued that the legal construct at hand in the proposal is actually not trust, but a mere trust-like arrangement, as it lacks one of the trust's most salient features -- transfer of the trust property by the settlor to the trustee. Apart from that, the thesis analyses specific provisions of the proposal and subjects them critique. Based on this analysis, it introduces a number of proposals for the enhancement of the proposed provisions.
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