区分信托合同与信托:昆山纯高案的另一种说理路径

Differentiating the Trust and Trust Contract:The Logics Behind the Judgements of Kunshan Chungao Trust Case

区分信托合同关系与信托(财产)关系,有助于厘清不同层次的法律问题。信托合同关系主要解决受托人是否承担信义义务、能否请求委托人转移信托财产的问题。信托(财产)关系主要解决信托财产是否独立以对抗第三人的问题。昆山纯高案的争议属于信托合同关系范畴,法院根据合同法规则进行裁判并无不当。该案中并无第三人对信托财产提出请求,不存在信托财产关系范畴的争议。已有文献在信托是否有效设立层面对信托财产是否具备确定性的讨论,存在偏颇。

To differentiate the trust and the trust contract helps to analyze various legal issues from different perspectives:The fiduciary duty generally starts from the conclusion of the trust contract,whether the settlor shall be enforced to transfer the trust property to the trustee is also a contract law issue;while the segregation of the trust property is a trust law issue.Disputes between the litigants of Kunshan chungao Trust Case belong to the contract law domain and were properly adjudicated.Given that there were no third-party-claims against the trust property,existing literatures on the case might have gone a little bit further to analyze whether the trust property in that case was certain and therefore whether a trust had been established.