Article title Ukraine Towards a Unified Trust-Like Tool in Terms of a Globalization
Authors

Doctor of Law, Professor, Full Member (Academician) of the National Academy of Legal Sciences of  Ukraine, Head of the Civil Law Department, School of Law of the Taras Shevchenko National University of Kyiv (Kyiv, Ukraine) ORCID ID: https://orcid.org/0000-0003-1661-0535

roman.maydanyk@gmail.com

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 5/2021
Сторінки [29-49]
Annotation

In terms of globalization and the resulting need for a better mix of European values and principles of efficiency and growth, the driving force of turning Ukraine into a prosperous economy and nation should be flexible trust-like institutions capable of competing with the Anglo-American trust and other best property management tools.

This necessitates a reconsidering of domestic legal constructions of fiducuairy ownership and property management using a new methodology based on a functional approach, which provides for the introduction into national law of a unified fiduciary structure that will functionally reflect the Anglo-American Institute and other best analogues in a civil law environment.

The essence of the Anglo-American trust and other best analogues of fiduciary property management in the civil law environment functionally best reflects the fiduciary fund, which is a trust-like structure, according to which the manager manages and controls the separated property, from other property manager, founder, beneficiary claims of their creditors, on its own behalf and in the interests of the beneficiary or a specific public benefit purpose, the founder and/or beneficiary have the right to reclaim this property in case of illegal acquisition of property by third parties or unfair exercise of rights by the manager.

 In its scope, the fiduciary fund is intended to become a universal legal institution, the provisions of which will apply to any relationship of fiduciary property management, including fiduciary ownership and management of another’s property, unless otherwise provided by law or a deed on establishment of a fiduciary fund.

The purpose of this study is form the general provisions of the unified institution fiduciary property management (concept, nature, object, grounds and elements) that functionally reflect the Anglo-American trust, other fiduciary best analogues legally compliant property management tools in a civil law environment.

The conclusions propose the decisive provisions of the institute of fiduciary ownership and property management as a functional reflection of the Anglo-American trust, other best analogues of fiduciary property management in the civil law environment.

This article is an attempt to reconsider the understanding of domestic constructions of fiduciary ownership and property management in order to determine the general legal guidelines of a flexible and competitive instrument of fiduciary property management, which will apply to all titles of fiduciary property management and functionally reflect the Anglo-American trust in a civil law environment in terms of globalization and the need for a better combination of European values and principles with efficiency and growth.

The comparative legal component of this study will help determine the general principles and the most effective and suitable for domestic law models of fiduciary property management, taking into account the common and distinctive features of the law of different legal families – Anglo-American, Romano-Germanic and with a mixed jurisdictions. In any case, I would like to consider this article as a source of inspiration in finding the best tool for property management in the civil law environment.

 

Keywords trust; fiducia; fiduciary ownership; fiduciary property management; fiduciary fund; updating (recodification) of the Civil Code
References

Bibliography

 

Authored books

1. Weiser F, Trusts in the Continent of Europe (Sweet & Maxwell 1936) (in English). Edited books 2. Gambaro A, ‘Trust in Continental Europe’ in Rabello A M (ed), Aequitas and Equity: Equity in Civil Law and Mixed Jurisdictions (Jerusalem 1997) (in English).

3. Hayton D, ‘English Trusts and Their Commercial Counterparts in Continental Europe’ in Hayton D (ed), Extending the Boundaries of Trusts and Similar Ring-Fenced Funds (Kluwer Law International 2002) (in English).

4. Honoré T, ‘Obstacles to the Reception of Trust Law? The Examples of South Africa and Scotland’ in Rabello A M (ed), Aequitas and Equity: Equity in Civil Law and Mixed Jurisdictions (Jerusalem 1997) (in English).

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7. Waal M J De, ‘Trust law’ in Smits J M (ed), Elgar Encyclopedia of Comparative Law (Edward Elgar 2006) (in English).

 

Journal articles

8. István Sándor, ‘Different Types of Trust from an Ownership Aspect’ (2016) 6 European Review of Private Law 1190 (in English).

9. Nolan R C, ‘Equitable Property’ (2006) 122 The Law Quarterly Review 262 (in English).

10. Vilella L S S, ‘The Problems of Trust Legislation in Civil Law Jurisdictions: The Law of Trusts in Puerto Rico’ (1945) 19 Tulane Law Review 383 (in English).

11. Wisdom J M, ‘A Trust Code for the Civil Law, Based on the Restatement and Uniform Acts: The Louisiana Trust Estates Act’ (1938) 13 Tulane Law Review 76 (in English).

12. Plyska Y, ‘Trast, fiduzij, dovircha vlasnist: ponjattja ta vzajemosvjasok’ (2020) 85 Aktualni problem dershavy i prava 202–7 (in Ukrainian).

13. Rjabchynska A, ‘Pravo dovirchoji vlasnosti v anglo-amerykanskij ta kontynentaljnij systemah prava: porivnjaljno-pravova harakterystyka’ (2018) 17 Pravove reguljuvannja ekonomiky 279–287 (in Ukrainian).

 

Websites

14. István Sándor, ‘The Hungarian Trust Law – An Anglo-Saxon Legal Institution in Civil Law Environment’ (LawyerIssue, 28.08.2015) <https://www.lawyerissue.com/ the-hungarian-trust-law-an-anglo-saxon-legal-institution-in-civil-law-environment> (accessed: 31.05.2021) (in English).

 

Other thources

15. Kontseptsiia onovlennia Tsyvilnoho kodeksu Ukrainy (ArtEk 2020) 26–27 <bit.ly/3rXx3a4> (accessed: 31.05.2021) (in Ukrainian).