La propriété fiduciaire : nature et régime

Abstract : Although existing in various forms in numerous European countries, the "fiducie" has only been introduced into French law in 2007. The trust acting as surety or manager is characterized by the transfer of ownership of one or several items by the creator "constituant" to the fiduciary. The fiduciary accepts to receive an asset designated in the considered patrimony and engages as well to accomplish a defined mission on behalf of the beneficiary. This ownership exercised by the fiduciary is commonly called the fiduciary property « propriété fiduciaire » and presents numerous particularities as the fiduciazy does not dispose of the prerogatives and attributes that would be found under ownership law as defined by article 544 of the Civil code. It is in this context that certain authors have questioned its true nature and its compatibility with the French legal system. The object of our work was firstly to study the nature of « propriété fiduciaire » by reflecting on the nature of the obligations incumbent upon the fiduciary, their influence on the affirmation of transfer of ownership, and indeed its assimilation to the idea of ownership. Thereafter we have considered the practical implementation of the « propriété fiduciaire » observing chronologically the three stages of the trust: its constitution, its execution and its closure. At the outset the fiducie's constitution is materialized by the constitution of its affected capital remaining independent from the fiduciary's personal property, we have researched whether this autonomy sufficed in order to recognize a separate legal personality. Thereafter, during the execution phase which fncludes the mission of conservation and management of the transferred assets by the fiduciary, we have analyzed the fiduciary's responsibilities and studied the possibilities to delimit the same. As for the final stage, after identifying the causes leading to the termination of the fiducie, we have studied the consequences of returning the asset to the creator or transferring it to a third party, particularly as regards the fiduciary.
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Antoine Arsac. La propriété fiduciaire : nature et régime. Droit. Université Panthéon-Sorbonne - Paris I, 2013. Français. ⟨NNT : 2013PA010253⟩. ⟨tel-01616127⟩

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