论我国遗嘱信托制度的困境与重构

On the Dilemma and Reconstruction of Testamentary Trust System in China

2020年新修订的《民法典》在继承编第1133条第四款新增“自然人可以依法设立遗嘱信托”条款,标志着我国遗嘱信托制度正式摆脱小众化的标签,遗嘱信托与遗嘱继承、遗赠并列成为个人遗产处分的新方式,为财富传承提供了一种更好的路径选择。然而,由于制度框架设计不足、有关法律链条衔接不畅、监督救济机制缺位等原因,导致其功效的发挥受到诸多限制。为此,需在剖析遗嘱信托的基本概念与制度特征的基础上,反思当前我国的遗嘱信托制度所面临的困境,重构符合市场和社会利益的遗嘱信托规则,以期为遗嘱信托制度在我国落脚生根创造条件。

In the newly revised Civil Code in 2020, the relevant provisions of testamentary trust are added to the fourth paragraph of Article 1133 of the Inheritance Book. It marks that our country’s testamentary trust system has officially got rid of the label of nicheism. The juxtaposition of testamentary trust with testamentary inheritance and bequest has become a new way of personal estate disposal, which provides a better path for wealth inheritance. However, due to the lack of institutional framework design, the poor connection of the relevant legal chain, the lack of supervision and relief mechanism and other reasons, its effectiveness is limited. Therefore, on the basis of analyzing the basic concepts and system characteristics of testamentary trust, we need to reflect on the difficulties faced by the current testamentary trust system in China, and reconstruct the testamentary trust rules in line with the market and social interests, so as to create conditions for the establishment of testamentary trust system in China.