Implementation of Trust Law and Fiduciary Relationship under Common Law System into Temple Asset Management under Thai Sangha Act B.E. 2505

Abstract

          The common law system has an important legal principle which is called as trust law, which is part of the law of equity. Trust law is a legal concept related to the management of assets to protect those who actually benefit from the assets and from actions of those in power who possess the assets that are unfair or inappropriate and take advantage of the actual beneficiaries.

          Trust law divides the trusts into 2 types, it is a trust that arises from the express intention of the trust to be created by the person who intends to establish it (settlor), also known as an express trust, such as a trust for the administration of a will and estate, or a charity trust, a trust for charity, and a trust that does not arise from the express intention of any person who establishes the trust, but arises from the operation of the law to achieve the objectives of fairness or righteousness in society, or is determined by a court decision, which can be further divided into several subtypes, such as a constructive trust, a trust that is effected by law, or a resulting trust, a trust that returns benefits to the settlor or the transferee of assets.

          A constructive trust, or trust by operation of law, is a trust created by law or by a court order to ensure social justice. This occurs when a person with the authority to possess or manage property for the benefit of another person commits any act related to the property in an improper, unfair, or unconscious manner. They must take action to remedy the damage caused to the true beneficiaries of the property (equitable remedy).

          A charity trust is a trust that is established for charitable purposes or for public benefit, by managing the assets to support activities that benefit society, such as schools, religions, hospitals, or foundations.

          This article aims to present the current problems regarding the management of Thai temple property, which are causing significant problems and impacts on the confidence and faith of Buddhists. This is due to the management of temple property under current laws, which are quite restrictive, have many limitations, are problematic in their enforcement and implementation, are riddled with loopholes and shortcomings, are prone to corruption, are violating the Dhamma-Vinaya, and are inappropriate for monks, and those involved in their roles as temple representatives. This article begins by presenting an overview of the governance of the Thai Sangha from the past to the present. It examines the Sangha Act and other relevant laws, including the rules of conduct, morality, and discipline for monks. It also examines the roles and duties of the Sangha administrators and those involved, such as temple committee members and treasurers. It also examines temple property and religious assets, and the current management of temple property under Sangha law and the Sangha Supreme Council regulations that have caused the aforementioned problems.

          The author then draws a comparison with the management of assets under trust law in the common law system, which manages assets for the true benefit of beneficiaries. The author proposes a new concept, not yet known in Thailand, regarding the establishment of constructive trusts and charity trusts, to be applied to temple assets and the management of Thai temple assets, including land, temple property, monastic land, sangha land, donations, merit-making funds, temple property and valuables, as well as temple religious assets, which are considered legally juristic trusts and protected for the true benefit of the public, the public interest, and the Buddhist public. This includes stipulating that temple representatives and related parties act as trustees in managing temple assets established as trusts. This is considered a fiduciary relationship, which requires them to possess appropriate qualifications (Fit and Proper) and not possess any prohibited characteristics. They must perform their duties to manage temple assets to the best of their ability and to the greatest benefit under the standards of fiduciary duty in accordance with common law, ethics, and the various precepts of the Buddhist scriptures. This includes determining penalties for performing duties. In addition, the temple representative should manage the trust under a group of persons or a group of representatives as government officials who must manage the temple’s assets as a trust in accordance with the principles of good governance or good governance. There are defined positions, powers, duties and responsibilities, a temple asset management system, an audit system, a risk management and compliance system, an accounting system and disclosure of information that is standardized and transparent to the public, including a complaint system and a whistleblowing system for wrongdoing.