中國信託業陷入低迷的法律分析－－寫在《信託法》實施以後

Why Trust Does Not Work Well in China-- A Review after the Promulgation of Trust Law of the People’s Republic of China

我國信託業雖然與銀行業、保險業、證券業一併號稱為現代金融體系的四大支柱，但信託業無疑是最弱的一支。《信託法》的出台並沒有帶來信託業的繁榮，在真正回歸了“受人之託，代人理財”的核心主業以後，信託業卻長期陷入了低迷。分析表明，在我國《信託法》中，雙重所有權的法系衝突問題懸而未決，受託人容易淪為委託人的代理人，委託人和受益人容易出現對峙僵局，瑕疵承繼制度矯枉過正，信託財產公示制度有名無實，沒有合理的市場退出機制。這些立法缺陷是中國信託業陷入低迷狀態的重要原因，也是信託制度在我國沒有順利實現本土化的突出表現。可以斷言，中國的信託業已進入瓶頸階段，《信託法》能否實現本土化是我國信託業能否走出低迷的關鍵。

Trust, bank, insurance and bond are four important branches in modern financial market. However, trust is undoubtedly the weakest one. Trust Law of PRC has been enforced for a long time, but trust in China is still at a low tide, obviously the law does not make the trust prosperous. Upon observing Trust Law of PRC, we find that the conflict of dual ownership between the Anglo- American law and continental law remains in suspense, the trustee is possible to become a agent of the settler, it is easy to reach a deadlock between the settler and trustee when they exercise their same rights, the bearing of defect of trust property is overcorrect, the publication of trust property is indeed of no function, and the stipulation on withdrawing from market is unreasonable. All of these defects are important reasons for the depression of trust in China, and they are also the obvious appearances of weakness in transplanting foreign trust law. We can confirm that trust is at the stage of bottleneck in China, and the localization is important for Chinese trust to get out of depression.