宣言信託的邏輯證成與制度建構

The Logical Justification and Institutional Construction of Self-Declared Trust

宣言信託中，委託人無須將信託財產進行轉移，與大陸法系理論下信託財產所有權移轉理論存在衝突，學理多予以否認。但在中國大陸，信託設立不以信託財產所有權移轉為前提，這為宣言信託預留了立法空間。此外，宣言信託並不違背信託財產獨立性及受託人專業化要求，亦不必然害及受益人及利益相關人。但基於宣言信託濫觴詐害信託之風險，有必要在限制宣言信託適用範圍基礎上，透過強化宣言信託設立的要式性並細化信託登記的客體，輔之以信託監察人設立及委託人權利的限制，以達致維繫各方主體利益衡平之目的。

In the self-declared trust, the settlor does not need to transfer the trust property, which is inconflict with the theory of transfer of trust property ownership under the traditional theory of civil law. So almost all academic theories deny it. However, in Chinese law, the establishment of the trust is not premised on the transfer of the ownership of the trust property, which leaves a legislative space for the self-declared trust. In addition, the self-declared trust does not violate the independence of the trust property and the trustee’s professional requirements, nor does it necessarily harm the beneficiaries and stakeholders. In order to achieve the purpose of protecting the legitimate rights and interests of stakeholders, and based on the risk that the self-declared trust would involve fraud, it is necessary to limit the scope of the self-declared trust, strengthen the formality of the establishment of the self-declared trust and refine the object of trust registration, supplemented by the establishment of a trust supervisor. Besides, it is important to establish the trust supervisor and restrict the settlor’s rights.