《信托法》的合同法化适用倾向及其应对

On the contractual application of the Trust Law and its countermeasure

在司法实践中,我国《信托法》的适用存在被合同法规范和合同性裁判思维取而代之的倾向。这一方面表现为人民法院否认涉案民事法律关系属于信托关系而拒绝引用该法;另一方面表现为人民法院虽然适用该法作为处理信托纠纷的依据,但其适用要么后位于《合同法》,要么被合同法规范所同化。基于信托在我国是通过合同方式搭建起来的,且由于我国缺乏衡平法传统,需要承认信托的合同属性,将《信托法》往默认性规则的方向修改,其中最重要的是放松对受托人信义义务的限制,允许委托人通过合同的方式降低受托人的信义义务。

In China's judicial practice,there is a trend that the Trust Law is in danger of being overridden by the norms of contract law and the thinking of contractual judgment.On the one hand,the people's court denies that the civil legal relationship involved in a case belongs to trust relationship and refuses to quote the law.On the other hand,although the people's court applies the Trust Law as the basis for dealing with trust disputes,its application is either later in the Contract Law or assimilated by the norms of the Contract Law.Essentially,trust is built by contract in China,where the tradition of equity law has lacked,so it is necessary to amend the Trust Law in the direction of default rules to recognize the contractual nature of trust.The most important thing is to relax the restriction on trustee's fiduciary obligation,and allow the trustee to reduce trustee's fiduciary obligation by contract.