论作为逃债信托的中国式家族信托及其司法对策

On Chinese-style Family Trust as the Debt-evading Trust and Its Judicial Countermeasure

作为逃债信托的中国式家族信托目前在我国已广为流行。为了阻止我国的殷富人士通过利用这种信托大面积成功逃债,从而损害社会公共利益,我国法院应当采用以“否认这种信托具有债务风险隔离功能,使其信托财产能够被强制执行以清偿委托人在其存续期间所负债务”为核心内容的司法对策,来处理相关案件。就此项司法对策的操作而言:对于个案中的家族信托,法院可以根据“委托人在其存续期间在从事企业经营活动”这一事实,推定委托人在设立家族信托时即具有“逃债目的”;只要它属于逃债信托,法院就既可以认定其为违反公序良俗的信托,又可以认定其为诈害债权信托,在其属于被动信托情形下还可以认定其在性质上不是《中华人民共和国信托法》意义上的信托,由此使其成为不具有债务风险隔离功能的信托,并相应地使其信托财产在法律上仍作为可供强制执行以清偿委托人的涉案债务的财产存在。

The Chinese-style family trust as the debt-evading trust has been prevalent in China now.In order to prevent the rich in China from utilizing such trust to successfully evade debts on a large scale to the detriment of the social public interests,the courts in China should adopt the judicial countermeasure with"denying such trust’s function of debt risk segregation and making trust assets being able to be enforced to repay the principal’debts incurred during its existence"as its core content to deal with relevant cases.For the operation of such judicial countermeasure:regarding the family trust in an individual case,a court can make a presumption that the principal possesses"the purpose of evading debts"when the trust is created according to the fact that"the principal had been participating in the business operations during the existence of the trust";and as long as the trust is the debt-evading one,the court can conclude both that it is the trust violating the public order and good custom,and that it is the trust cheating creditor,furthermore,the court can also conclude that it isn’t the trust in the sense of Trust Law of China if the trust belongs to a passive one,thus making it become a trust without the function of debt risk segregation and correspondingly making the trust assets being able to exist as the property available to enforcement for repaying the principal’s debts involved in the case.