论信托财产的主体性

The Subjectivity of Trust Property

传统观念秉持的信托财产"唯权利客体论"暴露了力所不逮的疲态。有鉴于此,立法与学界立场发生转变,表现为"客体实体化""选择性主体化""特殊类型组织化"和"一般性主体地位"四种对信托财产主体化的认知层次。主体性证成上,信托财产是目的财团,信托具备团体属性,特殊信托演化出组织特征;独立信托目的"冻结能力"是信托财产获得独立人格的根本原因,其引致的独立意思、独立财产与独立责任是直接原因。是以信托财产满足法人资格实质条件,未获主体地位是立法选择而非理论障碍。规范进路上,对信托财产主体地位的承认应采"信托法默示主义",即尊重设立者意图,兼顾公共利益及对现实的追认,缺省性地肯定商事信托与公益信托法主体地位,赋权性地允许民事信托拥有权利能力,以对特殊类型的强制性规定为例外。

The traditional concept that the trust property is only the object of right has exposed its weakness.Thus the academic and legislative standpoints gradually changed and presented as four kinds of cognition of the subjectivity of the trust property,which are"the object as entity","the selective subjectivation","the organization of special type","the general subject status".In the justification of the subjectivity,the trust property is patrimony by appropriation,the trust has foundational characteristics,while special types of trusts are organizations.The"freezing capacity"of the independent trust purpose is the fundamental reason for the subjectivity,and the independent meaning,property and responsibility are direct reasons.Because of that,the negation of subject status in our country is the consequence of legal choices rather than theoretical obstacles.The suggested path can be the"Implication of Trust rules",that is to respect the intention of founders,take public interests into consideration and admit the realistic situation,recognize subject status of commercial trusts and charitable trusts by default rules,of civil trusts by enabling rules,of special trusts by peremptory rules.