O trust como instrumento de proteção patrimonial: análise jurídico-social de sua incorporação no Brasil.

Abstract

The present work deals with the possibility of regulation of the trust in the Brazilian legal system. In this perspective, its main characteristics and elements are studied, comparing it with some existing figures of the fiduciary business and of the real rights. The institute, which originates from the common law system, enables a subject to be invested with property rights over another's property, with the objective of exercising it in the confidence and benefit of a third beneficiary. It is evident, therefore, that there is a distribution of property/ownership over the res, and that this instrument collides with the conception of property in the civil law legal model. From this perspective, the following problem arises: the trust, governed by its own legislation, may be received as an instrument of property protection in Brazil, without prejudice to the observance of legal provisions in force? As a hypothesis, it is possible that the trust does not violate the rules in force in the National Law, being possible to regulate it through the technique of separate patrimony. For this purpose, the deductive approach method is used, in its qualitative aspect, employing comparative study as the method of procedure, and bibliographic and documentary as research techniques. It is observed that the incorporation of the trust into national law would be convenient through the signing and ratification of the Hague Convention on the Law Applicable to Trusts and their Recognition, of 1985. It appears, because of this, that the trust would be na important legal instrument to reduce the gaps in Brazilian law, especially regarding property protection of certain groups.