大陸法系內生性信託法何以可能──德國信託習慣法的形成與啟示

Why is Endogenous Trust Law Possible in the Continental Legal System: The Formation and Enlightenment of German Trust Common Law

德國信託習慣法是大陸法系信託法的一個獨特樣本，萌芽於19世紀中後期，體系化於20世紀初期，是信託實務、司法判例與學術研究互動之結果。19世紀中後期，德國出現讓與擔保等早期信託業務，因與制定法規範有所牴觸而引發爭訟，法院確認其法律效力，學術研究繼而創設信託行為的概念。20世紀初期，法院創設直接性原則作為信託財產獨立性的判斷標準，學術研究完成信託法律理論的體系化。德國信託習慣法系經濟動因與法理創新綜合作用之產物，始終遵循以實踐問題為導向的法律發展模式。其啟示在於，信託制度在經濟生活中不可或缺，而與大陸法系固有法制之衝突又不可避免，當更加重視透過實務、判例、學術共同推動之法律續造，達成信託法制與固有法制之動態平衡。

German customary law of trust is a unique sample of trust law in civil law system. It sprouted in the middle and late 19th century and formed in the early 20th century. It is the result of the interaction of trust practice, judicial precedent and academic research. In the middle of the 19th century, early forms of trust business such as assignment and guarantee appeared in Germany, and disputes were triggered due to conflicts with statutory norms. The court confirmed the legal validity of the early trust structure, and academic research then created the concept of trust behavior. At the beginning of the 20th century, trust practice flourished. Focusing on the external relationship of trusts, courts established the principle of directness as a criterion for judging the independence of trust property, and academic research completed the systematization of trust legal theory. German customary law of trust is the result of the comprehensive effect of economic motivation and jurisprudential innovation, and has always followed a legal development model oriented to practical problems. The inspiration is that the trust system is indispensable in economic life, and the conflict with the inherent legal system of the civil law system is inevitable, so more attention should be paid to the renewal of the law through trust practice、judicial precedents and academic research to achieve a dynamic balance between the trust legal system and the inherent legal system.