中国信托业陷入低迷的法律分析——写在《信托法》实施以后

Legal Analysis on the Reason of Depression of Trust in China:——After the Enforcement of Trust Law of PRC

我国信托业虽然与银行业、保险业、证券业一并号称为现代金融体系的四大支柱,但信托业无疑是最弱的一支。《信托法》的出台并没有带来信托业的繁荣,在真正回归了"受人之托,代人理财"的核心主业以后,信托业却长期陷入了低迷。分析表明,在我国信托法中,双重所有权的法系冲突问题悬而未决,受托人容易沦为委托人的代理人,委托人和受益人容易出现对峙僵局,瑕疵承继制度矫枉过正,信托财产公示制度有名无实,没有合理的市场退出机制。这些立法缺陷是中国信托业陷入低迷状态的重要原因,也是信托制度在我国没有顺利实现本土化的突出表现。可以断言,中国的信托业已进入瓶颈阶段,信托法能否实现本土化是我国信托业能否走出低迷的关键。

Trust,bank,insurance and bond are four important branches in modern financial market,however,trust is undoubtedly the weakest one.Trust Law of PRC has been enforced for a long time,but our trust is still at a low tide,obviously the law does not make the trust prosper.Upon observing the trust law of PRC,we find that the conflict of dual ownership between the Anglo-American law and continental law remains in suspense,the trustee is possible to become an agent of the settler,it is easy to reach a deadlock between the settler and trustee when they exercise their same rights,the bearing of defect of trust property is overcorrect,the publication of trust property is indeed of no function,and the stipulation on withdrawing from market is unreasonable.All of these defects are the important reasons for the depression of trust in China,and they are also the obvious appearances of weakness in transplanting foreign trust law.We can confirm that trust is at the stage of bottleneck in China,and the localization is important for Chinese trust to get out of depression.