我国金融业商事信托法制协调问题研究
发布时间：2018-09-11 16:36
【摘要】：在英美法系国家,许多财产关系、商业交易活动或者公益事业都以信托方式为之。信托具有信托财产独立性,责任的有限性以及作为财产管理联系性等诸多内在制度优势。广泛运用于商事领域,主要用于资金融通、资产转换或商业运营等功能的制度设计上,在经济生活中发挥日益重要的作用。然大陆法系绝对所有权民法体系,与信托制度“二元所有权”理念格格不入,这种发源于英美法系独特法律构造的制度也使得大陆法系移植和继受这种制度困难重重。故大陆法系迟迟未能引进该制度或者即使引进制度,也存在诸多法律问题阻碍该制度顺利融入整个法律体系,对商事信托,更是缺乏理论研究。有鉴于此,加强信托制度的理论研究对该制度的引进和吸收至关重要。 我国目前信托业的发展远落后于银行、证券、保险等金融行业,期间又经历信托业的五次整顿和洗牌,使得原来就孱弱的信托业面临着何去何从的尴尬境地。但是另一方面信托制度在金融领域中的运用,诸如除信托公司开发的各种信托产品外,证券公司的理财产品、银行的个人理财和私人银行业务、还是保险公司的投资连接性产品实际上都运用了信托的原理,采取了信托的法律构造,信托制度已经渗入到金融业的各方面。而这些非信托机构从事的信托产品由于金融行业分业经营、分业监管的金融体制的影响分别适用不同的法律、监管方式,造成了信托机构与这些非信托机构之间的之间不公平竞争和监管真空,这些现象的存在无不对商事信托市场的运行和建立造成了诸多负面影响。究其原因主要是我国在引进信托制度时对信托概念、功能定位不当,对理论缺乏深入的研究,适用研究僵硬,盲目将置于民法固有体系,而忽视其生长的特有背景和土壤,因此产生无法妥善化解的矛盾。 本文主要是从信托的本质和商事信托的基本原理入手,以目前商事信托市场信托法与其他金融业在立法、监管、司法审判方面冲突为视角,总结要建立统一完善的信托业市场,需建立《信托业法》及相关法律配套制度,对完善信托法律体系,促进商事信托发展的具有重要意义。
[Abstract]:In common law countries, many property relations, commercial transactions or public welfare undertakings are conducted in trust. Trust has many inherent institutional advantages, such as the independence of trust property, the limitation of responsibility and the connection of property management. It is widely used in the commercial field, mainly used in the system design of fund financing, assets conversion or commercial operation, and plays an increasingly important role in economic life. However, the civil law system of absolute ownership in the continental law system is incompatible with the concept of dualistic ownership in the trust system. This system, which originated in the unique legal structure of the common law system, also makes it difficult to transplant and continue the civil law system. Therefore, there are many legal problems preventing the system from being integrated into the whole legal system, even if the civil law system fails to introduce the system, and there is a lack of theoretical research on commercial trust. In view of this, strengthening the theoretical research of trust system is very important to the introduction and absorption of this system. At present, the development of trust industry in our country lags far behind the banking, securities, insurance and other financial industries. During this period, the trust industry has been rectified and reshuffled five times, which makes the original weak trust industry face an awkward situation of where to go. But on the other hand, the application of trust system in the field of finance, such as the financial products of securities companies, the personal finance of banks and the private banking business, in addition to the various trust products developed by trust companies, In fact, the investment connective products of insurance companies have used the principle of trust and adopted the legal structure of trust, and the trust system has infiltrated into all aspects of the financial industry. And the trust products engaged in by these non-trust institutions are affected by different laws and regulatory methods due to the separate operation of the financial industry. It has caused unfair competition and regulatory vacuum between the trust institutions and these non-trust institutions. The existence of these phenomena has caused a lot of negative effects on the operation and establishment of the commercial trust market. The main reason is that the concept of trust is not properly defined in the introduction of trust system in our country, the lack of in-depth research on theory, the rigidity of applicable research, blindly placed in the inherent system of civil law, and neglect of its unique background and soil. As a result, there are contradictions that cannot be properly resolved. This paper starts with the essence of trust and the basic principle of commercial trust, and from the angle of view of the conflicts between the trust law of commercial trust market and other financial industry in legislation, supervision and judicial trial, summarizes the need to establish a unified and perfect trust industry market. It is necessary to establish the Trust Industry Law and related legal supporting system, which is of great significance for perfecting the trust legal system and promoting the development of commercial trust.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.282
本文编号：2237233
[Abstract]:In common law countries, many property relations, commercial transactions or public welfare undertakings are conducted in trust. Trust has many inherent institutional advantages, such as the independence of trust property, the limitation of responsibility and the connection of property management. It is widely used in the commercial field, mainly used in the system design of fund financing, assets conversion or commercial operation, and plays an increasingly important role in economic life. However, the civil law system of absolute ownership in the continental law system is incompatible with the concept of dualistic ownership in the trust system. This system, which originated in the unique legal structure of the common law system, also makes it difficult to transplant and continue the civil law system. Therefore, there are many legal problems preventing the system from being integrated into the whole legal system, even if the civil law system fails to introduce the system, and there is a lack of theoretical research on commercial trust. In view of this, strengthening the theoretical research of trust system is very important to the introduction and absorption of this system. At present, the development of trust industry in our country lags far behind the banking, securities, insurance and other financial industries. During this period, the trust industry has been rectified and reshuffled five times, which makes the original weak trust industry face an awkward situation of where to go. But on the other hand, the application of trust system in the field of finance, such as the financial products of securities companies, the personal finance of banks and the private banking business, in addition to the various trust products developed by trust companies, In fact, the investment connective products of insurance companies have used the principle of trust and adopted the legal structure of trust, and the trust system has infiltrated into all aspects of the financial industry. And the trust products engaged in by these non-trust institutions are affected by different laws and regulatory methods due to the separate operation of the financial industry. It has caused unfair competition and regulatory vacuum between the trust institutions and these non-trust institutions. The existence of these phenomena has caused a lot of negative effects on the operation and establishment of the commercial trust market. The main reason is that the concept of trust is not properly defined in the introduction of trust system in our country, the lack of in-depth research on theory, the rigidity of applicable research, blindly placed in the inherent system of civil law, and neglect of its unique background and soil. As a result, there are contradictions that cannot be properly resolved. This paper starts with the essence of trust and the basic principle of commercial trust, and from the angle of view of the conflicts between the trust law of commercial trust market and other financial industry in legislation, supervision and judicial trial, summarizes the need to establish a unified and perfect trust industry market. It is necessary to establish the Trust Industry Law and related legal supporting system, which is of great significance for perfecting the trust legal system and promoting the development of commercial trust.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.282
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