收益权信托关系之否认与双债务人合同之肯认:纯高案的民商法原理反思

Denial of a Trust of Rights on Income over Assets and Confirmation of a Two-debtor Contract:Reflections on the Anxin vs.Chungao Case from the Perspective of Civil and Commercial Laws

号称“资产收益权信托第一案”的纯高案判决以来,各界对其臧否不一,但对此等法律模式从民商法基本原理展开的讨论尚不足。对金融创新活动可以以强制规定和任意规定之比例为“秤”、无力偿债风险为“砣”予以衡量和评估。收益权信托的法理正当性仍然存在疑问,信托制度不宜被异化、信托标签不宜被滥用;资产证券化亦需强制规定方能保障。“概念创新”、功能替代与信托登记均不足以解决收益权信托的定性难题。收益权信托模式可被再定性为一种有次序的双债务人合同,最终用资人与资产管理人均对投资者承担责任,这可以更符合合同条款本身、合同背后实质交易的正当性,实现符合第三人利益的合同客观化解释与实质化处理。

The Kunshan Chungao case,which is known as the first suit in China regarding trust of rights on income over assets,has sparked many discussions.But analyses from the perspective of basic theories of civil and commercial law are needed.A proper evaluation of financial innovation and its regulation of this type of trust should be carried out in the perspectives of the ratio of mandatory and default rules and of the insolvency risk which are like a scale and a weight.A trust should not be carried out in a twisted way or used as a mere label,and an asset securitization requires strict conditions that could only be provided by mandatory rules.“Concept innovation”,functional substitute and trust registration are not proper solutions to the problem of this type of trust.The transaction mode in this case should be re-characterized as a two-debtor contract so that both the fund user and the asset manager are liable to the investor.This explanation conforms to the clauses in the contact,the substance of the agreement and the aim of protecting the third party by interpreting the contract in an objective way and treating it according to its substance.