论信托财产制度在中国的本土化

On Localization of Trust Property System in China

信托制度虽孕育于英国的衡平法,但其核心理念在于“受人之托、代人理财”的构造,而不在于是否存在衡平法。我们需要的是信托这样一种有利于促进财产利用和管理的设计,而不能单纯追求信托制度在大陆法系理论体系上的圆满。因此,对信托财产权利的研究应该转换研究视角,由实然转向应然。我国的信托制度应将信托财产所有权赋予受托人,委托人在转移财产所有权后,通过信托合同约束受托人的行为,受益人享有信托利益,不对信托财产享有任何物权。

Although trust system was born by British equity law, its core principle lies in a structure ＂authorized by one, financing on his behalf＂, not in such a equity law itself. What we need is a design of trust which helps to promote property employment and management, yet we cant only pursue a satisfaction of trust system from the theoretical view of continental law system. Therefore, when researching the property right, the study perspectives should be changed from suddenness to inevitableness. In China, the trust system should follow that the ownership of the property trusted be granted to the trustee, and the client does not enjoy any property rights after his transferring property ownership, through the trust contract binding the behavior of the trustee, the beneficiary possesses the trust benefits.