我国离岸信托的基本构造及适用困境

On the Basic Structure and Applicable Dilemma of China's Offshore Trust

随着资金跨国流转的日益频繁,含有涉外因素的民事信托运作越来越广泛。离岸信托与家族信托均是涉外民事信托的主要形式,二者相互独立却又密切相关。在我国,离岸形式的运用是现代金融创新的体现,是金融自由化、国际化而产生的概念。离岸信托制度,从法学基础理论的视角来看,承继信托的内质,具备信托制度所有的优势;从法学的实践应用来说,是很具实用性的财产管理制度,是现代金融创新、财富传承的重要途径。然而在我国,由于法律制度差异、税收政策的管制,离岸信托在财产登记、确权等方面均产生适用障碍甚至会引发法律风险,从而导致这项制度在商业实践中面临诸多困境。

With the increasingly frequent transnational flow of funds, civil trusts involving foreign factors are becoming more and more extensive. Offshore trusts and family trusts are the main forms of foreign civil trusts. The two are independent of each other but closely related. In China, the wide application of offshore trust is the embodiment of modem financial innovation, and the concept of financial liberation and internationalization. From the perspective of the basic theory of law, offshore trust system inherits the essence of trust and has all the advantages of the trust sys- tem ; from the practical application,it is a very practical property management system and an important way of mod- em financial innovation and wealth inheritance. However, offshore trust will produce applicable obstacles and even lead to legal risks in property registration and real rights because of the difference in legal system, tax policy control in our country. So the system faces many difficulties in commercial practice.