经营性国有资产引入商事信托之法律构想

A Legal Conception of Introducing Commercial Trust into Operational State-owned Assets

现行国有资产管理体制存在着多级委托代理成本昂贵,管理效率不高,易造成政企不分、政资不分和责任承担的无限性等弊端。运用商事信托来构建国资委与国有资产经营机构间的法律关系,通过商事信托解决国有资产管理中的矛盾,是必要且可行的选择。国有资产商事信托的信托财产是经营性国有资产,国资委作为经营性国有资产的所有权主体可作为信托关系的委托人。国有资产商事信托应当以全体人民作为终极受益人。结合英美法系和大陆法系对商事信托委托人、受托人及受益人的权利义务界限规定,并参考我国《信托法》的规定,对我国经营性国有资产商事信托的各方进行权利义务法律关系界定。

There are many malpractices in the existing management system of the state-owned assets,such as expensive multi-level agency,inefficient management,indiscrimination of the functions between the government and enterprises,indiscrimination of the function between the government and the state-owned asset management,unlimited Liabilities,etc.It is a necessary and feasible choice to apply commercial trust in constructing the legal relationship between the state-owned assets supervision and administration commission(SASAC) and state-owned asset management organizations,and it may solve the conflicts in the management of state-owned assets.The commercial trust of state-owned assets is operational.SASAC as the key body of the ownership delegate of the operational state-owned assets can be the principal of the trust.People as a whole should be the ultimate beneficiary of the commercial trust of the state-owned assets.The article defines the legal relationships between the parties in the commercial trust of the operational state-owned assets of China,by refering to the provisions of the rights and obligations of commercial trust settlor,trustee and beneficiary in Common law and civil law system,as well as the Trust Law of China.