Perhaps I can recommend a reading of the UKSC judgment in Akers v Samba, which addresses, without deciding anything, the superficial dichotomy between the split ownership/proprietary approach, and the personal obligation approach.
For example: Page 23
"_§ 48. On the other hand, SICL’s case can be said to overlook the considerable difference which exists between an unrestricted legal title to an asset, which can normally be disposed of to a third party, and a legal title in relation to which a beneficiary has trust rights, which continue to exist and be enforceable unless and _
until overridden by a transfer under the lex situs as recognised in Macmillan v Bishopsgate
.
§ 49.In Ayerst v C & K (Construction) Ltd [1976] AC 167, 177G - H Lord Diplock referred to the legal own
_ership of property subject to a trust as held by the trustee “not for his own benefit but for the benefit of the cestui que trust or beneficiaries” but went on to say that “Upon the creation of a trust in the strict sense as it was _
developed by equity the full ownership in the trust property was split into two constituent elements … the ‘legal ownership’ in the trustee, what came to be called the ‘beneficial ownership’ in the cestui que trust.”
§ 50 The metaphor of a “division” or “split” of title needs to be approached with some caution. Swadling in Burrows, English Private Law, para 4.149, speaks of:
_“ the falsity of statements which talk in terms of a ‘division’ or ‘separation’ of rights when rights are held on trust, or even _
worse, of legal and equitable ‘titles’ existing before the creationof the trust.”
Swadling, citing Australian authority, suggests an analysis according to which an equitable interest is “not carved out of a legal estate but impressed” or “engrafted” onto it (para 4.150)"
The remaining overview in the judgment confirms this approach, at least in England.
There will I think be a need to ensure that the term “power” which you employ as only being within the purview of the State, not be confused with the same word in English. Without making any comment upon a law and legal system which I understand to be taught in Chinese universities under the terminology Law and Politics, the essence of the English trust is that it is enforced upon the conscience of the “trustee” by the Courts. In any absolute civil property régime, a similar methodology will inevitably assume that a Chinese Court, as an emanation of the power of the State can have the same attributions over the conscience of those subject to the law it administers. The individual’s “powers” and rights therefroe depend upon the Court’s power, and if rad in this light, Akers might assist you in your analysis.
Akers is an interesting case in that it involved a Cayman law trust over Saudi Arabian Shares, but the issue, in limine, revolved rather about the wording of the United Kingdom legislation in insolvency: s.127 Insolvency Act 1986. The Cayman Liqudators were using he Cross Border Regulations to have the matter dealt with in the United Kingdom.
Peter Harris
Overseas Chambers