我国家族信托的法律适用问题

Issues of Choice of Law Governing Family Trusts

随着遗嘱信托被写入《民法典》,以及家族财富传承与规划的需求不断增长,信托资产跨境配置越来越多,可以预见与家族信托有关的涉外纠纷将日益涌现,法律冲突不可避免。目前我国《涉外民事关系法律适用法》对涉外信托关系的法律适用作出的规定尚不完善。第一,家族信托的当事人“协议”选择信托适用的法律并非在所有情况下都能实现,因为信托可以通过单方法律行为即可设立。第二,当事人对信托适用的法律进行选择的权利没有限制,极易与既有法律相悖。第三,目前的《涉外民事关系法律适用法》所规定的默认规则可能会与既定法律相冲突,也会带来法律适用的不确定性,不利于信托制度的发展。因此建议我国的信托法律适用法借鉴《海牙公约》和英美法的经验,采纳有限制的当事人意思自治与最密切联系原则并重,以及分割法律适用原则,推动《信托法》的修法并积极参与国际公约及其谈判。

With testamentary trusts written into the Chinese Civil Code,the needs for family wealth succession and planning have been growing,and more and more trust assets are located across the borders,it is anticipated that there will be foreign-related disputes arising out of family trusts and that conflict of laws is inevitable.The current Law on Application of Laws on Civil Juristic Relations with Foreign Elements has a provision providing for the rules regarding determination of the governing law on trusts with foreign elements;however,the provision is not flawless.First,it is not always possible for the parties of a family trust to choose the governing law through agreement among them since a trust can be created through the settlor’s unilateral act.Second,where the parties’rights of choice-of-law are limitless,their choice may be incompatible with the current laws.Third,the default rule provided therein may lead to a conflict with the current law,and may also bring uncertainties to the parties,which will adversely affect the development of the trust system.Therefore,it is suggested that the Hague Convention and the common law be consulted with to improve the Chinese law on application of trust laws;specifically,the parties’autonomy with appropriate limits shall be adopted along with the most significant relationship principle,and dépe?age should be allowed.It is also suggested that the Trust Law be revised and that China actively participate in negotiations for international conventions on conflict of trust laws,and join them when time is ripe.