论金融法院作为衡平法院的限度——以信托脱法治理为例

Limits of Financial Courts as Courts of Equity:A Case Study of the Governance of Trust Circumvention

信托自其诞生之日就自带“脱法”属性,其独特的法律结构赋予了多面功能。我国资管信托行业萌芽自监管规则缺失、发达于分业监管规则不统一的系统环境,出现个别机构和个人通过信托实现监管套利、遮掩不当甚至违规目的。随着我国金融机构交叉持股和交叉金融业务的发展,混业经营提高效率的同时引发监管套利,成为威胁金融安全及金融秩序的挑战。以往人民法院处理民商事金融相关纠纷案件时,主要通过适用法律或行政法规解决民商事纠纷。金融交易资金量大,重复性高和示范效应强,裁判者不仅需关注个案公正,还需准确评价交易合规合法性,以实现与金融监管保持协同监管效应。在金融治理领域,司法和监管各有优势,法院协同金融监管客观上起到了衡平法院的守护职责,意味着金融司法对监管政策从形式判断过渡到基于监管目的的协同共治。

Since its birth,the trust has an attribute of‘circumvention’,and its unique legal structure has given it multi-faceted functions.China’s assets management trust industry sprouted from the lack of regulatory rules and developed in the systemic environment of non-uniform rules of sectoral regulation,which has led to financial institutions and individuals employing the trust to achieve regulatory arbitrage and cover up improper or even illegal purposes.With the development of cross-holding and cross-financial businesses of financial institutions in China,the mixed operations have increased efficiency while simultaneously triggering regulatory arbitrage,which has become a challenge threatening financial security and order.In the past,when the people’s courts handled civil and commercial financial-related disputes,they mainly resolved the disputes by applying laws or administrative regulations.As financial transactions are large in volume,repetitive and exemplary,adjudicators not only need to focus on individual cases for justice,but also need to accurately evaluate the compliance and legality of transactions in order to achieve synergistic regulatory effects with financial supervision and regulation.In the field of financial governance,justice and regulation have their own advantages.The courts,in cooperation with the financial regulation,play the role of guardian of the courts of equity,signifying that the regulatory policy will be transformed from a formal judgment to a collaborative co-regulation based on regulatory purposes.