我国家族信托法律问题研究
发布时间：2018-08-18 11:56
【摘要】：信托之于我国不仅属于“舶来品”,更是特定历史背景下的“应急品”。从1979年中国第一家信托公司成立以来,中国的信托业已经走过了三十多个年头,先后经历了五次大整顿,清理了数百家信托公司,整理了百亿信托坏账,这其中的艰难与困顿难以想象。2001年中国《信托法》的颁布,标志着中国信托业走入了一个全新的法制时代。此后的十余年可谓中国信托业的辉煌时期,信托行业资产管理规模每年呈几何倍数增加,截止2015年第三季度,信托业管理资产规模达到15.62万亿,成为与银行业、保险业和证券业并齐的现代金融四大支柱行业。但是,绚烂之后终会归于平静,进入2013年以来,信托业在国家经济深度调整、同业竞争压力增大等多重因素的挤压下,开始进入下行通道,信托行业的发展速度放缓,整个行业不得不开始思索转型之路。家族信托就在这样一个背景之下进入了信托理论界与实务界的视野,成为近年来的一大热点。家族信托起源于古老英国家产授予的一种方式,之后被广泛应用于家族财富管理领域,其历史源远流长。我国家族信托的起步较晚,2012年下半年我国内地首只家族信托产品在酝酿多年后面世,虽然一时跟风者众多,市场反响也颇为强烈,但受限于我国家族信托制度的缺失,信托制度的理论与实践障碍未解决,家族信托业务在我国的发展并不顺畅。这也正是本文选取该主题的主要原因。在研究思路上,本文以我国家族信托存在的法律问题为主线,以信托的基础理论为抓手,对比研究大陆法系与英美法系在家族信托方面的理论与实践成果,从家族信托的设立、家族信托的运行和家族信托的监管三方面入手,研究探讨理论界与实务界最为关注的问题,以期为我国建立家族信托制度提供支持。本文主要内容如下:导论部分。导论部分阐述了本文选题的背景和意义,首先,家族信托是国家治理体系和治理能力跨时代进步的体现,家族信托的实践和发展可以为当前因为产权未确立而躁动不安的财富寻找安全、稳健、合法的出路与通道,当仁不让地承担起我国实现财富平稳传承的金融机制设计职能,给产权的最终确立争取时间和空间,为国家治理体系和治理能力现代化的建设奠基铺路;其次,家族信托是国家经济战略转型的需要,在国家经济进入新常态的大背景下,家族信托通过构造财富和资产的配置、转让、传承机制和金融产品,将从便捷的金融工具逐步演变为宏观经济稳定的金融支撑,经济创新和转型的有力抓手,社会安定和谐的坚强后盾;再次,家族信托是社会财富积累到临界点的必由之路,中国高净值人群对财富保障风险的关注和对财富传承越来越多的考虑,孕育着我国家族信托发展和实践的可观的增长潜力和巨大的市场价值;第四,全面深化改革为家族信托的发展不断创造空间,与家族信托有关的政策的动态变化为其发展预留的空间将不断放大,房产税、遗产税的出台是可预期的,全面财产权利的明确也会逐渐深入,政策空间越来越大,信托的制度优势将不断显现;最后,信托行业回归本源主导家信托发展的趋势日益明朗。在这一背景下对家族信托的相关法律问题进行研究具有极强的现实意义。随后是相关研究成果评述、研究方法和研究思路以及创新及不足。第一章介绍了信托制度的起源及理论基础,从信托的起源入手,介绍了英美法系及大陆法系下的“双重所有权制度”和“一物一权原则”的产生及演变,及两者分别作为信托理论基础而产生的冲突与矛盾,同时列举了大陆法系国家为了顺畅移植“信托制度”而做出的努力与尝试。第二章对家族信托的理论基础及实践发展进行了阐述,首先对家族信托的内涵进行界定,并对家族信托及其他相近的几组概念进行比较,对家族信托的功能进行阐述;其次,本文对家族信托受益权的属性进行定位,主张将信托受益权定位于物权,这样才能够与信托财产独立性原则保持一致;随后,对两大法系下家族信托制度的比较与发展进行了说明,分别列举了两大法系下主要国家和地区对家族信托的实践;最后对我国家族信托的发展及现实需求作了论述,以我国信托业的五次整顿为切入点,介绍了我国家族信托的探索与实践。第三章就家族信托设立中的当事人相关法律问题进行论述,以委托人、受托人即受益人的定位及权责分配为维度,以信托受益权的物权属性为切入点,结构家族信托当事人的权力义务关系。第四章对家族信托设立中的信托财产相关法律问题进行论述,以信托财产独立性为基础,为信托财产独立性划定了边界;在重申信托财产独立性的基础上对信托登记制度进行理论分析及制度构建。第五章为“家族信托运行中的法律问题”,主要论述了两方面的问题,第一是家族信托中税收规避的研究,从实证与理论的角度入手,主张针对家族信托的税收规制重点应不在于为国家增加财政,而在于防止国家税收的流失;第二是家族信托监察人制度研究,对监察人的定位、任职条件及权限进行了阐述。第六章为“关于家族信托监管体系的完善建议”。本章梳理了我国家族信托监管体系现状,并从《信托法》的核心问题、《信托公司管理办法》的完善、信托行业自律监管的完善等角度入手对我国家族信托相关立法提出了完善建议。
[Abstract]:Since the establishment of the first trust company in China in 1979, China's trust industry has gone through more than 30 years. It has gone through five major reorganizations, cleaned up hundreds of trust companies and sorted out ten billion bad debts. The enactment of China's Trust Law in 2001 marked a new era of legal system for China's trust industry. Since then, it has been a glorious period for China's trust industry. However, the brilliance will eventually return to calm. Since 2013, the trust industry has entered the downward channel under the pressure of multiple factors, such as the deep adjustment of the national economy and the increase of competition pressure among the same industry. Family trust has entered the field of trust theory and practice and become a hot spot in recent years. Family trust originated from a way of granting property in ancient Britain, and then was widely used in the field of family wealth management. It has a long history in China. Family trust started late. In the second half of 2012, the first family trust product in mainland China was brewed many years later. Although there were many followers and strong market reaction, it was limited by the absence of family trust system in China, the theoretical and practical obstacles of the trust system remained unsolved, and the development of family trust business in China was not smooth. Chang. This is the main reason why this paper chooses this topic. In the research thinking, this paper takes the legal problems of family trust in China as the main line, and takes the basic theory of trust as the grasp, compares the theory and practice of family trust between continental law system and Anglo-American law system, from the establishment of family trust, the operation and practice of family trust. The main contents of this paper are as follows: Introduction part. Introduction part elaborates the background and significance of this topic. Firstly, family trust is a cross-era national governance system and governance capacity. The practice and development of family trust can find a safe, steady and lawful way out and a way out for the restless wealth because the property right is not established. It can take on the function of designing the financial mechanism to realize the stable inheritance of wealth in our country, and strive for time and space for the final establishment of property right and for the national governing system. Secondly, family trust is the need of national economic strategic transformation. Under the background of entering a new normal state of national economy, family trust will gradually evolve from a convenient financial instrument to macroeconomic stability through the configuration, transfer, inheritance mechanism and financial products of wealth and assets. Thirdly, family trust is the only way for social wealth to accumulate to the critical point. People with high net worth in China are paying more and more attention to the risk of wealth security and the inheritance of wealth, which breeds considerable development and practice of family trust in our country. Fourth, deepening the reform in an all-round way will create space for the development of family trust, and the dynamic changes of policies related to family trust will expand the space reserved for its development. Finally, it is increasingly clear that the trust industry will return to the original dominant trust development trend. In this context, the study of family trust related legal issues has a strong practical significance. The first chapter introduces the origin and theoretical basis of the trust system. Starting from the origin of the trust, it introduces the emergence and evolution of the "dual ownership system" and the "one thing, one right principle" under the common law system and the continental law system, and the conflicts and contradictions between the two as the theoretical basis of the trust respectively. Chapter 2 expounds the theoretical basis and practical development of family trust. Firstly, it defines the connotation of family trust, compares family trust with other similar concepts, and expounds the function of family trust. Secondly, it expounds the family trust. Then, it explains the comparison and development of the family trust system under the two legal systems, and lists the practice of the family trust in the main countries and regions under the two legal systems; finally, it gives me the conclusion. This paper discusses the development and practical needs of the national trust, and introduces the exploration and practice of the family trust in China from the perspective of the five reorganization of the trust industry in China.Chapter three discusses the legal issues concerning the parties involved in the establishment of the family trust, taking the position of the trustee and the trustee as the beneficiary and the distribution of power and responsibility as the dimensions, and taking the trust as the basis. Chapter Four discusses the legal issues related to trust property in the establishment of family trust, which delimits the boundary for the independence of trust property on the basis of the independence of trust property, and establishes the trust registration system on the basis of the independence of trust property. The fifth chapter is about the legal problems in the operation of family trust. The first part is the study of tax evasion in family trust. From the angle of demonstration and theory, the author argues that the key point of tax regulation for family trust is not to increase finance for the country, but to prevent it. Chapter Six is "Suggestions on Perfecting the Supervision System of Family Trust". This chapter combs the current situation of the supervision system of family trust in China, and from the core issues of the Trust Law, "Management Office of Trust Companies" The perfection of the law and the perfection of the trust industry's self-discipline and supervision put forward some suggestions on the legislation of family trust in China.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D922.282
，
本文编号：2189398
[Abstract]:Since the establishment of the first trust company in China in 1979, China's trust industry has gone through more than 30 years. It has gone through five major reorganizations, cleaned up hundreds of trust companies and sorted out ten billion bad debts. The enactment of China's Trust Law in 2001 marked a new era of legal system for China's trust industry. Since then, it has been a glorious period for China's trust industry. However, the brilliance will eventually return to calm. Since 2013, the trust industry has entered the downward channel under the pressure of multiple factors, such as the deep adjustment of the national economy and the increase of competition pressure among the same industry. Family trust has entered the field of trust theory and practice and become a hot spot in recent years. Family trust originated from a way of granting property in ancient Britain, and then was widely used in the field of family wealth management. It has a long history in China. Family trust started late. In the second half of 2012, the first family trust product in mainland China was brewed many years later. Although there were many followers and strong market reaction, it was limited by the absence of family trust system in China, the theoretical and practical obstacles of the trust system remained unsolved, and the development of family trust business in China was not smooth. Chang. This is the main reason why this paper chooses this topic. In the research thinking, this paper takes the legal problems of family trust in China as the main line, and takes the basic theory of trust as the grasp, compares the theory and practice of family trust between continental law system and Anglo-American law system, from the establishment of family trust, the operation and practice of family trust. The main contents of this paper are as follows: Introduction part. Introduction part elaborates the background and significance of this topic. Firstly, family trust is a cross-era national governance system and governance capacity. The practice and development of family trust can find a safe, steady and lawful way out and a way out for the restless wealth because the property right is not established. It can take on the function of designing the financial mechanism to realize the stable inheritance of wealth in our country, and strive for time and space for the final establishment of property right and for the national governing system. Secondly, family trust is the need of national economic strategic transformation. Under the background of entering a new normal state of national economy, family trust will gradually evolve from a convenient financial instrument to macroeconomic stability through the configuration, transfer, inheritance mechanism and financial products of wealth and assets. Thirdly, family trust is the only way for social wealth to accumulate to the critical point. People with high net worth in China are paying more and more attention to the risk of wealth security and the inheritance of wealth, which breeds considerable development and practice of family trust in our country. Fourth, deepening the reform in an all-round way will create space for the development of family trust, and the dynamic changes of policies related to family trust will expand the space reserved for its development. Finally, it is increasingly clear that the trust industry will return to the original dominant trust development trend. In this context, the study of family trust related legal issues has a strong practical significance. The first chapter introduces the origin and theoretical basis of the trust system. Starting from the origin of the trust, it introduces the emergence and evolution of the "dual ownership system" and the "one thing, one right principle" under the common law system and the continental law system, and the conflicts and contradictions between the two as the theoretical basis of the trust respectively. Chapter 2 expounds the theoretical basis and practical development of family trust. Firstly, it defines the connotation of family trust, compares family trust with other similar concepts, and expounds the function of family trust. Secondly, it expounds the family trust. Then, it explains the comparison and development of the family trust system under the two legal systems, and lists the practice of the family trust in the main countries and regions under the two legal systems; finally, it gives me the conclusion. This paper discusses the development and practical needs of the national trust, and introduces the exploration and practice of the family trust in China from the perspective of the five reorganization of the trust industry in China.Chapter three discusses the legal issues concerning the parties involved in the establishment of the family trust, taking the position of the trustee and the trustee as the beneficiary and the distribution of power and responsibility as the dimensions, and taking the trust as the basis. Chapter Four discusses the legal issues related to trust property in the establishment of family trust, which delimits the boundary for the independence of trust property on the basis of the independence of trust property, and establishes the trust registration system on the basis of the independence of trust property. The fifth chapter is about the legal problems in the operation of family trust. The first part is the study of tax evasion in family trust. From the angle of demonstration and theory, the author argues that the key point of tax regulation for family trust is not to increase finance for the country, but to prevent it. Chapter Six is "Suggestions on Perfecting the Supervision System of Family Trust". This chapter combs the current situation of the supervision system of family trust in China, and from the core issues of the Trust Law, "Management Office of Trust Companies" The perfection of the law and the perfection of the trust industry's self-discipline and supervision put forward some suggestions on the legislation of family trust in China.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D922.282
，
本文编号：2189398
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