decision of June 6, 2000
Excerpt from the judgement of the Liechtenstein Supreme Court of 06.07.2000, 5 C 303/98-54 (translation):
This jurisdiction was criticized vehemently by scholars. Above all Bösch has pointed out the inconsistency of this jurisdiction with the wording of Sec. 34 subparagraph 3 of the Final Section of the Person and Company Law in connection with Art. 898 of the Person and Company Law (relating to the founding of a legal entity see also Art 108 subparagraph 5 of the Person and Company Law). He proved convincingly that when the editors of the Liechtenstein Person and Company Law conceived their treuhänderschaft they started from a model which distinguished between the "German/English trustee” and the "Roman” fiduciary and that with their type of treuhänderschaft pursuant to Art. 897 seq. of the Person and Company Law they got their eyes on the form of a treuhand which was orientated by the trust law model and the German law model (see Bösch, The Liechtenstein Treuhänderschaft as a Mixture of a Trust and a Treuhand, 1995, p. 301, at 359-360; Bösch, Trust and Fiduzia in the Legal System of the Principality of Liechtenstein, in Jus & News, 1997, 40; Bühler, Legal Adjustment and Standardisation of the Law on Services of the Principality of Liechtenstein, Jus & News, 1997, 8) ...
... For the sake of completeness it is to referred to the facts that in a obiter dictum the Liechtenstein Constitutional Court had grave doubts against the former jurisdiction of the Supreme Court (see LES 1997, 153, at 158) and that also opinions which were recently publicised by scholars are mainly in line with the view of Bösch or have taken over his view (see Moosmann, The Anglo-Saxon Trust and the Liechtenstein Treuhänderschaft in Special Consideration of the Beneficiary (1999) 190-191; Quaderer, The Legal Status of the Beneficiary in the Liechtenstein Family Foundation (1999) 90-91) ...
... This Court follows the view of Bösch and the opinions of the scholars cited by him, which reject an approach according to which the Liechtenstein treuhänderschaft is orientated exclusively by the trust. ...
... In accordance with Bösch it has to be assumed that when drafting this interim provision the lawmakers had considered that the many cases of fiduciary relationships of legal life, which did not fit to the type of the trust pursuant to Art 897 of the Person and Company Law and hence were not regulated explicitly by the law, should be covered and that for these the supplemental application of the tacit trust relationship (Art 898 of the Person and Company Law) was to be ordered (Bösch, The Liechtenstein Treuhänderschaft as a Mixture of a Trust and a Treuhand, 373 citing further literature)....
... Already in the light of these considerations which are founded in the wording of the law and also of other considerations of Bösch regarding the founding and administration of Liechtenstein legal entities this Court is not in a position to adhere to the jurisdiction of the former divisional court which was discussed in the beginning. Also a long standing jurisdiction has to be adjusted in the sense of an advancement of the law to better thoughts. Bösch has proved convincingly that the former jurisdiction was incorrect in regard to a law system which is used methodically. Therefore to the conviction of this Court a change from this jurisdiction was necessary. Hence the Liechtenstein treuhänderschaft is not an all including legal form for all cases involving trusts and fiduciaries....