The USA Journals Volume 03 Issue 06-2021
13
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 18, 2021 |
Pages:
13-19
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-03
I
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2021:
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‘
ABSTRACT
The subjects of a contract of trust management of property have clear rights and obligations under
the contract. First of all, the trustee is the one who has to think about the rights and obligations of
the party “performing the main function” in this legal relationship, and the continuation of the
contractual relationship depends on his actions. The article discusses the issues of protection and
observance of the rights and interests of the beneficiary.
KEYWORDS
The trust management agreement, contract, founder and the beneficiary, Civil Code.
INTRODUCTION
The subjects of a contract of trust
management of property have clear rights and
obligations under the contract. In most cases,
the content of the contract also constitutes
the powers of the trustee under the contract.
As long as the property is transferred to a
trustee, the trustee has the right to take any
legal and practical action in the best interests
of the beneficiary in respect of that property
under the trust management agreement as
long as the trustee controls the property. The
law or contract may provide for restrictions on
certain actions for the trust management of
property.
According to E. A. Sukhanov, although the
trustee exercises the powers (warrant) of the
owner, trustee does not receive these rights
on the basis of waiver of the claim from the
owner. The owner-founder gives the manager
the opportunity to exercise only his rights, not
his own. The same situation arises in the
management of property rights. In this case,
Issues Of Protection And Enforcement Of The Rights And
Interests Of The Beneficiary
Bakhromjon Topildiev
Doctor Of Juridical Science, Professor, Civil Law Department Of Tashkent State University Of
Law, Tashkent, Uzbekistan
Journal
Website:
http://theamericanjour
nals.com/index.php/taj
pslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 06-2021
14
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 18, 2021 |
Pages:
13-19
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-03
I
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2021:
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as well, the manager acquires the opportunity
to exercise the powers of the authorized
person, and the rights themselves remain in
the possession of the authorized person. In
the cases specified, the manager acts as the
owner, even though manager is not the
owner. After all, the manager is in charge of
the property of another on behalf of the
owner or the person he represents, not on his
own behalf [1].
V. A. Dozortsev suggests distinguishing the
rights and obligations of a trust manager from
his rights and obligations to third parties [2].
In addition to these considerations, it should
be noted that the powers of the trust
manager include not only the exercise of the
rights and interests of the founder of the
management of property management, but
also the implementation of actions aimed at
profit from the property. As a general rule, the
primary responsibility of a trustee is to
properly manage the property entrusted to
him [3].
THE MAIN PART
The management of entrusted property
means the development of the property in the
interests of the founder and the beneficiary,
the development of its benefits, the
successful and reliable operation of the
business, the operation of the law and the
maximum protection of the property from
rapid collapse. income. In this sense, the trust
management must obtain an income not less
than the previously received profit from the
property or record the result agreed by the
parties in the contract. For instance, if before
the transfer to the trust management the
annual income of the enterprise was 25 million
Uzbek soums, the result of the trust
management is not less than 25 million Uzbek
soums or less according to the agreement of
the parties.
A
trustee
must
demonstrate
high
professionalism in property management,
fully demonstrate his knowledge, skills and
abilities in a particular field, protect the
entrusted property as his own property and,
most importantly, keep in mind the interests
of the founder and beneficiary [4].
In doing so, trustee shall take all measures to
ensure that the value of the property
entrusted to him does not fall. For example,
when the share price falls on the stock
exchange, the trustee must take all necessary
measures to raise the share price.
Obligations of the trust manager to manage
the property, must first take measures to
protect the property. However, it is also
important to ensure that such measures are
put into practice. However, it should be noted
that these cases are not reflected in the civil
legislation of our country. First of all, it is
expedient to include in Article 857 of the Civil
Code of the Republic of Uzbekistan, the fifth
part of the Rules of insurance of property
transferred to trust management as the most
important practical action with respect to the
custody of the property entrusted to the trust
manager and the future loss of such property.
In our opinion, this norm should be expressed
in the following sense:
- the trustee must fully insure the property
transferred to trust management at the
expense of this property. If the property is
transferred to a trust manager to carry out
business activities, then the trust manager
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must also insure the business risk at the
expense of the property under trust
management.
If the insurance costs are incurred at the
expense of the trustee, these costs can then
be recovered from the property under trust
management.
The introduction of such a norm in the Civil
Code, along with the protection of the
interests of the owner and his property rights
in respect of the property entrusted to trust
management, prevents future property
losses. At the same time, entrepreneurial risk,
in this sense, entrepreneurial risk, is the risk
that the entrepreneur's counterparties will
violate their obligations or fail to receive the
expected income from the business due to
changes in the conditions of the business as a
result of risk-based business activities. and the
risk of civil liability, here, liability for
obligations arising from damage to life, health
or property of other persons, and in cases
provided by law, as well as contractual liability
insurance should always be considered as an
obligation of a trustee to protect property
under trust management need [5].
The question of who bears the risk of
accidental loss of property is also important in
a trust management relationship. After all,
while a trustee must take practical and legal
action against the property in the best
interests of the owner and the beneficiary, he
or she will also need to take adequate care of
the property. In this regard, it should be
strengthened in the Civil Code who should be
responsible for the risk of accidental loss of
property under trust management. In this
case, it would be expedient to include the
following rule as part 6 of Article 857 of the
Civil Code:
- the risk of accidental loss or damage to the
property transferred to the trust management
is the responsibility of the trust manager,
unless otherwise provided by law or contract.
It is well known that a trustee acts in the
interests of the founder and the beneficiary.
In this regard, the founder of the
management and the beneficiary have the
right to be aware of the actions taken by the
trustee in the management. This obliges the
trustee to submit a report on its activities to
the founder of the management and the
beneficiary within the period and in the
manner prescribed by the trust management
agreement.
Article 857 of the Civil Code defines the rights
and obligations of a trust manager in respect
of the property entrusted to him. In
accordance with this article, the trustee
exercises the rights of the owner in respect of
the property entrusted to trust management
within the limits provided by law and the
contract of trust management of property.
In order to protect the property in trust, the
trustee has the right to demand redress for
any violation of his rights. In this case, the
trustee has the rights of the owner of the
property as the holder of the title and has the
right to use any civil law methods in the
protection of the property entrusted to the
trust management [6,7].
According to Article 228 of the Civil Code, a
trustee has the right to demand (vindication)
of the property entrusted to him from the
illegal possession of another person.
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The claim of the owner to seize his property
from another person illegally (vindication is
derived from the Latin word "vim / dicere",
meaning "I declare the use of force") is a non-
contractual claim of the legal owner to return
the property in kind from the illegal owner.
Our legislation provides for the existence of
several circumstances for the initiation of a
vindication claim. They are as follow:
First, the owner must be deprived of the
actual ownership of the property that has
fallen out of his possession. Otherwise, other
methods of protecting property rights are
used.
Second, property deprived of ownership must
be retained in kind and be in the actual
possession of another. Otherwise, other
methods of protecting property rights are
used here as well. For example, a claim for
damages.
Third, vindication focuses only on the return
of an individually marked item. In this case, it
is necessary to distinguish between items of
the same type with an individual (individually)
designated item. If it is possible to distinguish
the property of the real owner from the same
type of property, then vindication is also
applied to this type of property. If segregation
is not possible, a claim arising from unjust
enrichment, not a vindication claim, should be
applied.
Fourth, the vindication claim is non-
contractual and protects property rights as an
absolute subjective right [8].
If the property was paid for by a person who
did not have the right to transfer it to another
person, the recipient did not know and could
not know (fair owner), the property was lost
by the owner or by the person who gave it to
the owner, or from the owner or he - if the
property was stolen from the person who
transferred it or otherwise lost their
possession, the owner has the right to
demand it from the person who received the
property.
If the property was sold in the manner
prescribed for the execution of court
decisions, the property may not be seized on
the grounds specified in the first part of this
article.
If the property is received free of charge from
a person who does not have the right to
transfer it to another person, the owner has
the right to claim the property in all cases.
Money, as well as securities listed as bearer,
cannot be claimed from a bona fide holder.
According to Article 230 of the Civil Code, the
owner has the right to demand the following
when claiming property in accordance with
Article 228 of the Civil Code:
to return or pay all income received or to be
received from a person who knew or should
have known that his possession was unlawful
(unscrupulous possessor) during the whole
period of possession of the property by that
person;
and from the bona fide possessor - all income
which he has received or is to be deducted
from the time when he knew or should have
known that his possession was unlawful, or
from the time when the owner claimed it on
the claim for property.
In turn, both the bona fide possessor and the
unscrupulous possessor have the right to
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demand from the owner to pay the necessary
expenses incurred on the property for as long
as the income received from the property is to
be returned to the owner.
If it is possible to separate the things that
improve the thing without damaging the
thing, the bona fide possessor has the right to
keep these things. If it is not possible to
separate such items, the bona fide possessor
has the right to claim the costs incurred to
improve the item, but these costs should not
exceed the value added to the item (Articles
229-230 of the Civil Code).
As a general rule, property under trust
management is recovered from both the bona
fide
possessor
and
the
unscrupulous
possessor. This is because both the honest
possessor and the dishonest possessor are
considered illegitimate possessors.
For example, in accordance with Article 34.8
of the Law of the Republic of Uzbekistan "On
Mortgage" of October 4, 2006, if it is proved
that the owner of the pledge letter knew or
should have known this while possessing it, he
is not considered the legal owner of the
pledge letter.
Both the founder and the beneficiary of the
management will have specific rights and
obligations under the contract. First of all, the
founder of the management has the right to
control the legal and practical actions of the
trust manager on the basis of the terms of the
contract,
without
interfering
with
his
operational and economic activities for the
management of property. To do this, he has
the right to receive relevant information and
reports from the trustee within the period
specified in the contract. If the founder of the
management finds violations of the terms of
the contract, he has the right to demand from
the trustee to eliminate it within a reasonable
time.
The question of whether the action of the
founder of the management to transfer the
property to trust management is his right or
obligation has also caused a heated debate in
the legal literature. Some authors believe that
the transfer of property to trust management
is the responsibility of the trust manager,
while
others
the
contract
of
trust
management of property is a real contract
emphasizes that the transfer of property to
trust management is not part of the
obligations of the founder [9-12].
In our opinion, the opinions of the authors of
the second group are quite reasonable. After
all, in a contract of trust management of
property, the rights and obligations of the
parties arise only after the transfer of
property to a trustee, except for the
conclusion of the contract, and the transfer of
property to a trustee is not the obligation of
the founder.
Unless otherwise provided by the contract,
the founder of the management has the right
to demand the transfer to him of the profits
and income from his property transferred to
the trust management.
If the contract of trust management of
property provides for the payment of a fee to
the trust manager, the founder of the
management will have to pay to the trust
manager the amount specified in the contract.
Typically, this obligation is fulfilled by giving
the trustee the right to withhold an
appropriate portion of the income, profit, and
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other material benefits received from the
property for the fees and expenses incurred
by the trustee to be paid to him.
The founder of the management has no right
to alienate, pledge and enter into other
transactions
related
to
the
property
transferred to the trust management. This
rule follows from the requirements of Article
857 of the Civil Code. After all, it stipulates
that during the term of the contract of trust
management of property, the property rights
in respect of it are exercised by the trust
manager,
not
the
founder
of
the
management.
CONCLUSION
In a contract of trust management of
property, the founder of management as a
creditor must fulfill the obligations of the
creditor. That is, he must submit all the
information and documents about the
property entrusted to the trust management
in order for the trust manager to operate
effectively, and provide information about his
trusted and stable business partners. In
addition, the founder of the management has
no right to interfere in the operational and
economic activities of the trust manager.
If the contract of trust management of the
property is concluded in favor of a third party
(beneficiary), the above rights of the founder
of the management will belong to the
beneficiary. However, the beneficiary also has
the right to waive all the rights granted to him
by the trustee of the property at any time and
for no reason. In this case, the rights of the
beneficiary pass to the founder or the newly
appointed beneficiary acquires these rights.
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