初論信託受託人義務規範之性質

A Study on Provisions of Fiduciary Duty in Taiwan Trust Law

受託人並非信託財產實質所有人卻有極大管理權力，造成代理問題。受託人義務係減緩代理問題之有效方法，可惜信託法對此規範並不完整。近期信託於世代間財富移轉功能漸受重視，但信託法並未設計成友善使用的制度，尤其針對受託人義務部分規範不夠完整，將降低委託人使用信託之意願。為此，修正信託法相關規定應是當務之急，尤其在信託關係中，信託管理、受託人義務與責任等是信託能否達成目的之關鍵。美國信託法對此已發展出相當成熟且穩定的規範模式，並將許多原則成文法化，可為我國信託法解釋或未來修法之參考。本文擬以研析美國信託法為主，就受託義務規範部分提供未來修法之建議方向。

The agency problem exists in a trust relationship, because a trustee, as a legal owner but an equitable owner, has discretionary power of management over the trust property. The fiduciary duty can be effectively used to mitigate the agency problem to some degree. However, there are deficiencies in rules of fiduciary duty in trust laws, which cannot be expected to provide a settlor with sufficient protection. Recently, the functions of trusts have been highly emphasized in the family succession planning, a hot topic in practice, but a settlor may be concerned that the agency cost remains relatively high due to the lack of effective rules of fiduciary duty in Taiwan trust laws. Therefore, it is necessary for trust laws to be amended as soon as possible to fix such deficiencies in rules of fiduciary duty which are most fundamental to a trust. The U.S. trust laws which have developed a variety of rules regulating fiduciary duty in a comprehensive manner and many of them have been codified, can be good sources for Taiwan to consider how to explain or reform its trust laws. After referring to the U.S. laws and a body of academic literature, this article is expected to offer some insights into current provisions of the Taiwan Trust Act and its future reform.