第八周词汇回顾

第 11 组： 林欣豫 刘澳
La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

The plaintiffs rely on Skurikhin No. 1 where at [45] the English

High Court accepted the judgment creditor’s submission
summarised at [38] and [39], namely that a receiver by way of
equitable execution may be appointed over whatever may be
considered in equity （衡平法上） as the assets of the judgment
debtor, and that specifically:

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

The plaintiffs contend that this extends the reach of （适用的范

围；可达到的边界） receivership by way of equitable execution
to situations where the judgment debtor has de facto control of
the trust assets even if he has no legal right of control or legal
power to direct how those assets are dealt with.

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

The significance of de facto control over assets is that, where it is

demonstrated to exist, that then begs the question （引出问
题） whether those who are submitting to （受制于） that control
do so because they recognise the right of the person exercising
that control to dictate to them what should be done with those
assets.

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

Shukrikhin CA was not cited to me by counsel, perhaps because,

being focused on abuse of process （程序滥用） , it was not
considered material to the questions before me.

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

In Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank and Trust

Co (Cayman) Ltd and others [2012] 1 WLR 1721, the judgment
debtor had the unfettered discretion （不受控制的自由裁量权） to
revoke the trust. This was a right that could be delegated to
receivers for them to exercise.

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

A receiver is appointed to stand in the place of the debtor and do

those things which the debtor should, as a matter of good
conscience （良心） , have done in order to satisfy the judgment
debt （满足案涉债务实现） .

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

Without a right to do so, if a receiver is appointed, the receiver will

not be able to compel compliance with any instruction he may give
in place of the debtor, and the third party will be free to withhold
（拒绝 ） cooperation. Thus, while equity presumes that what
ought to be done is done, equity also does not act in vain （无效果
的；徒劳无功的） .

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

Accordingly, as the plaintiffs do not assert that Mdm Zhang had

any right over the moneys in the Bank Accounts other than those
derived from her beneficial ownership of them, I turn to the second
issue of beneficial ownership （受益所有权） .

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

The plaintiffs bear the burden of proof to establish Mdm Zhang’s

beneficial ownership on （基于；根据） a balance of probabilities.
Both they and the defendants were content to rest on the affidavit
evidence （宣誓书证据） , without cross-examination of witnesses.

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

As I have noted at [19], the plaintiffs put their case on the basis of
a resulting trust （回归信托，此时信托受益人就是信托设立人） .

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

The plaintiffs in this case go further and rely on evidence that they
say shows that Mdm Zhang positively （肯定地；积极地）
intended to retain beneficial ownership of the monies.

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

First, they object to admissibility （可采纳性） of the DB Profile

Form （资料表） , the DB Risk Profile Form, the Remittance Forms
and the AsiaTrust Invoice.

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

Weight （证明力） is another matter and must be assessed

carefully, especially where there is any ambiguity or lack of clarity.

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

The plaintiffs point out that SETL, no doubt appreciating （意识

到） the significance of its inaction in relation to these two
transfers from the Bank Accounts which it claims to beneficially
own, has belatedly demanded an explanation from Mdm Zhang and
reserved the right to make a claim against her, by their solicitors’
letter dated 19 January 2022 to her solicitors.

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La Dolce Vita Fine Dining Co Ltd v Zhang Lan and Others

Ms Zhang is taking legal action （诉讼） to set aside （取消）

the said court orders.

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 International tax law

• Resident taxpayer: 居民纳税人

• Tax base: 税基、纳税依据
• Property tax: 财产税
• Real estate tax: 房产税
• Source withholding: 源泉扣缴
• Gift tax: 赠与税
• Tax incentive: 税收激励
• Inheritance tax: 遗产税
• Tax haven: 避税天堂

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 International tax law

• beggar-thy-neighbor: 以邻为壑 ( 使邻居受损而自己受益 )

• Value-added tax: 增值税
• Customs duties: 关税（对进口产品征收的
• Special levies: 特别税
• Economic assumption 经济制裁
• Unti-dumping duty 反倾销税
• Countervailing duty 反补贴税
• outbound transaction 境外交易
• inbound transaction 入境交易
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 International tax law
• Income tax is calculated based on the relevant tax authority principle, while
deferred tax is calculated based on accounting principle.
• 所得税是根据“税务局原则”来计算的，而递延所得税则是根据“会计
原则”计算的。

• Income tax is calculated by multiplying the taxable income against the tax
rate.
• 所得税是根据应纳税所得额乘以税率得出的。

• Deferred tax is calculated based on the taxable temporary differences. It can be

either asset or liability.
• 递延税项是根据应纳税暂时性差异计算的。它可以是资产或负债。
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Thanks.