The Transplantation of Quistclose Trusts in China: Difficulties in Law and Normative Uncertainties

Abstract

<p>This article examines the transplantation of Quistclose trusts in China from the perspectives of legal doctrine and normative justification. Legal transplantation is a process of digestion and absorption, requiring consideration of not only the law to be transplanted, but also why and how it should be transplanted. In this light, the article first analyses the operation of Quistclose trusts in English law. Two specific questions are explored: (a) what is the legal nature of a Quistclose trust; and (b) what are the core rules and values in relation to Quistclose trusts? The article then examines the legal difficulties and uncertainties in relation to the transplantation of Quistclose trusts in China. It argues that the introduction of this device to China may face three difficulties. The first relates to conflicts between Quistclose trusts, an equitable device in common law systems, and various branches of Chinese law. Second, the conservative attitude of Chinese judges in applying and interpreting Chinese laws raises another barrier in transplanting Quistclose trusts. Third, the lack of normative justification for Quistclose trusts raises doubt as to whether and why the transplantation of Quistclose trusts should be proposed in China. Finally, the article concludes that it is currently not feasible to transplant Quistclose trusts into the Chinese legal system.<br></p>