信托制度异化论——对我国现行信托产品法律结构之评判

On the Dissimilation of China's Trust Institution:Some Comments on Legal Structure of China's Present Trust Products

《中华人民共和国信托法》突破了我国原先"一物一权"的成文法系传统,导入了"名义所有权"与"实际所有权"分离的所有权"二元制结构"。面对这种全新的法律结构,实务界往往将信托当作新的融资工具进行利用。事实上,我国目前的信托产品并不具备信托所应具备的法律特征,而立法界与理论界对此又缺少相应的回应,信托产品离真正的信托制度渐行渐远。为此,通过对信托法律关系和法律特征的梳理,剖析并解释现行主要信托产品存在的结构性问题,以期纠正现有对信托"实用主义"功能下的错误认识,还原信托的本来面貌。

China＇s Trust Law has recognized the legality of double - ownership structure on one property though Chinese law system is considered as the continental law whose civil law claims that ＂one property, one ownership＂. Encouraged by the trust law, thus, many financial products have been designed in the name of trust by Chinese trust companies to expand their business. However in this article, it holds that most of so - called trust products have not really reflected the legal characteristics of trust and such products cannot be considered as trust. Therefore, for the purpose of clarifying the knowledge concerning trust, some legal issues about the existing trust products are designed to explain the legal characteristic of a real trust.