| 释义 |
constructive trust
A trust that arises by operation of the law. It is a form of implied trust and is exempt from compliance with writing formalities imposed by section 53(2) of the Law of Property Act 1925. There are numerous types of constructive trust, but all come under two categories: the institutional constructive trust and the remedial constructive trust. English law recognizes only those in the former category. An institutional constructive trust automatically arises when certain unconscionable circumstances occur (often due to the actions of the purported trustee); for example, when a person in a fiduciary position makes an unauthorized profit, when a stranger meddles in a trust, or in the case of a failed vendor–purchaser transaction. It is the court’s latter declaration as to the beneficial entitlement of property that makes the trust evident; however, the trust and proprietary consequences take effect from the time of the conduct that gave rise to the trust, and there is said to be no judicial discretion in the recognition of the trust or its consequences. In a domestic setting, a common intention constructive trust may arise. By contrast, a remedial constructive trust is a tool of the court (prevalent in Canada and Australia) that is imposed at the discretion of the judge to provide a remedy and often takes effect only at the time of the judicial declaration. In those jurisdictions that recognize them, remedial constructive trusts are often used to reverse the unjust enrichment of the defendant, thereby giving effect to restitution. The key distinction between the two categories of trust is often the impact on third-party creditors. Although English law has not been prepared to accept the remedial constructive trust (Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (HL)), there has been senior judicial support for its introduction (Thorner v Major [2009] UKHL 18 per Lord Scott). |