利用信托制度促进我国反腐倡廉建设——官员财产申报应与信托法律制度相结合

System of Trust Can Be Used to Promote Anti-corruption Construction in China——The Combination of Officials’ Property Declaration and Trust Legal System

财产申报制度可以在一定程度上令公职人员的非法所得曝光,但却无法监督他们利用自己的职权将自己的合法所得从事投资交易从而取得不当私利的情况。为了根本解决这个问题,可以设立与财产申报相配套的法律制度,即盲目信托和推定信托制度。前者要求公职人员在将自己合法取得的财产进行投资管理时通过盲目信托来进行以避免利益冲突;后者则自公款被贪污挪用之时起认定贪污的官员即刻成为该笔财产的推定信托的受托人,为国家和集体的利益持有并管理这笔财产,从而所有的信托财产及其收益都属于国家和集体所有。即便贪官携赃款外逃,也不会受到诉讼时效的限制;即便贪官已死,他的继承人仍然作为这笔财产的受托人对国家和集体承担受托人义务,负责偿还所有被贪污的财产及收益。

The system of property declaration against public employees may help to disclose their illegal income to some extent. However, it cannot supervise the situation in which they invest their lawful income through taking advantage of their position and power so as to receive illegal gains. To fundamentally resolve this problem, the paper proposes to establish blind trust and constructive trust system to support the property declaration system. The former may request the public employees to utilize blind trust when investing their lawful income to avoid conflicts of interests, while the latter would regard the public employees as the trustee of the embezzled or converted property immediately after they have done so, and thus they would manage the property for the benefit of the state and collective. Under this system, the litigation against the corrupted public employees will not be barred by the statute of limitations even if they flee abroad, and even after they die, their heirs would still owe the obligation to the state and the collective to return the corrupted proper^y and any income thus received.