The Autonomy-Based Account of Chinese Trust Laws

Abstract

There has been considerable discussion concerning the key values or goals underpinning the express trust device in English law. However, there is as yet no existing scholarship that explores the normative values of Chinese trust law since its enactment in 2001. This Article examines Chinese trust law from the perspective of personal autonomy. It identifies three dimensions of the conception of personal autonomy and explores how the trust law rules engage with each dimension. It finds that, in China, individuals have the autonomy to use the express trust device to arrange their property plans. However, such autonomy is limited in that it can only be exercised in alignment with the state’s regulatory goals. This is in stark contrast to its English counterpart, which allows individual autonomy to the largest possible extent. This Article considers the implications this analysis has for the reformation of Chinese trust law. It discusses some reform proposals that have been intensely debated in recent literature and highlights the insights the autonomy-based analysis can offer.