商业信托法律制度研究

发布时间：2019-03-21 12:13

【摘要】：从大陆法系传统观点来看,信托是一种财产管理制度,而公司、合伙是企业组织形式,根本不可能存在交集,然而在美国、新加坡等发达国家,将商业信托视为组织实体,并从组织法的视角以成文法形式确立商业信托法律制度,商业信托作为一种盈利性的工具,被广泛运用到资产管理中,信托财产的独立性,使商业信托具备资产隔离和有限责任的商事组织属性,如果商业信托确实具有“组织性”,而大陆法系的信托法又尚未从组织法角度对其进行界定,这就是值得我们深思和研究的课题。证券投资基金、私募股权投资基金、特殊目的信托等无论前期选取公司型、契约型、合伙型,但是最终的架构运作都回归到信托关系,都是利用各种形态聚集财产,财产由托管人保管,并委托专业的受托机构管理经营信托财产,受益人享有受益权,实现管理权与受益权相分离、利用信托的架构达到信托财产的破产隔离、有限责任、受益权证券化、大众化等,基金亦可入股上市公司成为股东,可见实践中信托的实体性已凸显,组织程度已经相当高。而在理论上,我国关于信托的认识依然停留在契约关系阶段,用合同和财产法原理来规范商事组织的经营,自然会带来诸多不适应,因此,我国亟需从组织法的视角构建商业信托法制,建议采取“商业信托法”单行法模式,商业信托享有商事主体地位,享有信托财产,以其名义对外交易;由专业受托人管理信托财产并将信托利益分配给受益人;受益权具有对价性、可转让性。商业信托的设立属于商事组织的设立,采取严格准则主义;对商业信托实行统一监管模式;赋予受托人独立的专业财产管理权利,受托人地位彰显需要制度的约束以保障投资者的利益。
[Abstract]:From the traditional point of view of civil law system, trust is a kind of property management system, while corporation, partnership is the form of enterprise organization, there is no overlap at all. However, in developed countries such as the United States, Singapore and other developed countries, commercial trust is regarded as an organizational entity. From the angle of organization law, the legal system of commercial trust is established in the form of written law. As a profitable tool, commercial trust is widely used in asset management, and the independence of trust property. Commercial trust has the property of commercial organization with separation of assets and limited liability, if the commercial trust is indeed "organized", and the trust law of civil law system has not yet defined it from the point of view of organization law. This is a subject worthy of our deep thought and study. Securities investment funds, private equity funds, special purpose trusts, and so on, regardless of the early selection of corporate, contractual and partnership types, but the ultimate structure and operation all return to trust relations, all of which use various forms to gather property. The property is kept by the trustee and entrusted to a professional fiduciary institution to manage and manage the trust property. The beneficiary shall enjoy the beneficial right, realize the separation of the administrative right from the beneficial right, and make use of the structure of the trust to achieve the bankruptcy separation and limited liability of the trust property. Benefit securitization, popularization, etc., funds can also become shareholders in the listed companies, it can be seen that in practice the substantial trust has been highlighted, the degree of organization has been quite high. In theory, the understanding of trust in our country is still in the stage of contractual relationship. Therefore, the use of contract and property law principles to regulate the management of commercial organizations will naturally lead to a lot of inadaptability. It is urgent for our country to construct the legal system of commercial trust from the perspective of organization law. It is suggested to adopt the mode of separate law of the Law of Commercial Trust, in which commercial trust enjoys the status of main body of commercial affairs, enjoys the trust property and trades in its name. The trust property is managed by the professional trustee and the trust benefit is distributed to the beneficiary; the beneficial right has the property of consideration and transferability. The establishment of commercial trust belongs to the establishment of commercial organization. In order to protect the interests of investors, trustees are endowed with independent professional property management rights, and the status of trustees demonstrates the need for institutional constraints.
【学位授予单位】：暨南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D912.28

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