民法典时代信托的制度定位、融入与发展

The Institutional Positioning, Integration and Development of Trust in the Age of Civil Code

自信托法实施以来,理论上一直未能将其有效地与我国民法体系相衔接,信托法始终游离于民法之外。随着《民法典》的颁布,信托法将再次面对着融入民法的挑战和机遇。为此,必须首先在理论上明确信托法自身的定位。在大陆法系中,信托法的核心制度功能在于实现财产的独立性,该功能无法借助诸如利他合同等民事法律制度加以实现。在明确信托法这一制度定位的基础上,可以通过民事法律行为的分析工具将信托纳入法律行为的范畴,从而进入我国的民法体系之中。一般认为,在当前阶段制约信托发展的最大障碍在于制度的不完善。然而,信托登记与信托财产独立性这一核心制度功能的实现并无关联。作为有别于物权登记的信托登记,其功能在于将特定财产在性质上属于信托财产的事实向社会公开,从而有助于交易第三人识别财产的性质。因此,立法者在进行信托登记相关的规则设计时应当围绕撤销权制度而展开,对委托人、受益人与交易第三人之间的利益进行取舍。

As a special civil law, trust law has not been able to effectively connect it with our civil law system in theory since its implementation, and trust law has always been separated from civil law. With the promulgation of the Civil Code, the trust law will once again face the challenges and opportunities of integrating into the civil law. For this reason, we must first clarify the positioning of the trust law in theory. In the civil law system, the core system function of trust law is to realize the independence of property, and the system function cannot be realized by the traditional civil legal system. On the basis of clarifying the institutional positioning of the trust law, trusts can be included in the category of legal acts through the analysis tools of legal acts, thereby entering the civil law system of our country. As a legal act of trust, it is generally believed that the biggest obstacle to its development at the current stage is the imperfection of the trust registration system. However, trust registration has nothing to do with the realization of the core system function of trust property independence. As a trust registration, which is different from the registration of property rights, its function is to disclose the fact that a specific property is a trust property in nature to the public, thereby helping a third party in the transaction to identify the nature of the property. Therefore, when designing rules related to trust registration, legislators should focus on the system of revocation rights, and choose between the interests of the trustor, the beneficiary and the third party in the transaction.