中国信托登记制度研究
发布时间：2018-11-25 11:39
【摘要】：信托是一种财产转移及管理的法律制度设计。信托财产是信托的核心要素，整个信托法律关系就是围绕信托财产的管理、运用和处分而展开的。2001年《信托法》颁行以来，信托登记制度一直未能确立，不利于信托财产的有效运用和信托当事人的权益保护，因此研究信托登记制度，对深化信托法学研究、推动信托业可持续发展具有重要意义。 本文首先从近年来我国经济发展和信托业发展的对比数据中看出我国信托业的经济逆周期时期的良好表现以及作为我国第二大金融业态的地位的巩固，但是在繁荣发展的同时，由于信托登记制度的缺失，信托资金被挪用，受益人的权益被侵害的事例时有发生，这就需要我们从源头控制和隔离信托业务风险，尽快建立我国的信托登记制度。 第一部分研究信托登记制度的基本问题，从信托登记的概念入手，介绍了信托登记的主体、信托登记的内容和信托登记的客体，，并对信托登记客体双重性作出界定，指出信托登记的客体是信托财产和信托法律关系的统一。最后从确保信托财产的独立性、保护受益人的权利和保护交易安全三方面论述信托登记的积极功能。 第二部分对境外信托登记制度作了比较分析。分别从英美法系和大陆法系两大法系背景下信托登记制度的特色进行介绍，其中重点论述了日本和我国台湾地区关于信托登记对抗主义与我国现行的信托登记生效主义的异同，并指出其替代登记生效主义的可行性。 第三部分围绕我国信托登记制度的主要问题及不利影响，从财产权分散登记的所涵盖的部门说起，说明登记机关众多，登记机构分散对于在对应的财产权之上设立信托所产生的重复登记、查询不易的弊端；然后分析了上海信托登记中心在实践中存在的问题；最后剖析了登记制度不完善对于我国信托实践的消极影响。 第四部分是建构我国信托登记制度的具体建议。信托登记配套性立法是首先需要解决的问题。本文从信托登记的统一立法模式与分散立法模式对比选择中，提出信托登记统一立法模式的优点和可行性；然后从不动产财产权信托、应登记动产财产权信托和知识产权信托三方面提出信托登记机构的具体设立；最后从信托登记申请、信托登记的查询和审查以及对信托登记机构登记错误情况下提出赔偿责任等方面对信托登记制度作出具体的安排，提出自己的构想。
[Abstract]:Trust is a kind of legal system design of property transfer and management. Trust property is the core element of trust. The whole legal relationship of trust is developed around the management, application and disposition of trust property. Since the promulgation of Trust Law in 2001, the trust registration system has not been established. It is not conducive to the effective use of trust property and the protection of the rights and interests of the trust parties. Therefore, it is of great significance to study the trust registration system in order to deepen the research on trust law and promote the sustainable development of the trust industry. This paper first shows from the comparative data of China's economic development and trust industry development in recent years that the good performance of China's trust industry in the counter-cyclical period and the consolidation of its position as the second largest financial form of our country, but at the same time of prosperity and development, Due to the lack of trust registration system, trust funds are misappropriated, and the rights and interests of beneficiaries are infringed from time to time, which requires us to control and isolate trust business risks from the source, and to establish our trust registration system as soon as possible. The first part studies the basic problems of the trust registration system, starts with the concept of the trust registration, introduces the subject of the trust registration, the content of the trust registration and the object of the trust registration, and defines the dual nature of the trust registration object. It is pointed out that the object of trust registration is the unity of trust property and trust legal relationship. Finally, the positive function of trust registration is discussed from three aspects: ensuring the independence of trust property, protecting beneficiary's rights and protecting transaction security. The second part makes a comparative analysis on the registration system of overseas trust. This paper introduces the characteristics of trust registration system under the background of Anglo-American law system and civil law system respectively. It focuses on discussing the similarities and differences between the antagonism of trust registration in Japan and Taiwan and the existing trust registration effective doctrine in China. It also points out the feasibility of the alternative registration effectivism. The third part focuses on the main problems and adverse effects of the trust registration system in China, starting with the departments covered by the decentralized registration of property rights, indicating that there are many registration authorities. Decentralized registration institutions for the establishment of trust on the corresponding property rights on the creation of duplicate registration, difficult to query the drawbacks; Then it analyzes the problems existing in the practice of Shanghai Trust Registration Center, and finally analyzes the negative impact of imperfect registration system on the practice of trust in our country. The fourth part is the concrete suggestion to construct our trust registration system. Trust registration supporting legislation is the first problem to be solved. This paper puts forward the advantages and feasibility of the unified legislative model of trust registration from the comparison and selection between the unified legislative model of trust registration and the decentralized legislative model. Then from the real estate property rights trust, should register the movable property right trust and the intellectual property trust three aspects proposed the trust registration institution concrete establishment; Finally, from the aspects of the application for registration of trust, the inquiry and examination of registration of trust, and the liability of the registration of trust in case of false registration, the author puts forward his own idea on the system of registration of trust.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.282
本文编号：2355965
[Abstract]:Trust is a kind of legal system design of property transfer and management. Trust property is the core element of trust. The whole legal relationship of trust is developed around the management, application and disposition of trust property. Since the promulgation of Trust Law in 2001, the trust registration system has not been established. It is not conducive to the effective use of trust property and the protection of the rights and interests of the trust parties. Therefore, it is of great significance to study the trust registration system in order to deepen the research on trust law and promote the sustainable development of the trust industry. This paper first shows from the comparative data of China's economic development and trust industry development in recent years that the good performance of China's trust industry in the counter-cyclical period and the consolidation of its position as the second largest financial form of our country, but at the same time of prosperity and development, Due to the lack of trust registration system, trust funds are misappropriated, and the rights and interests of beneficiaries are infringed from time to time, which requires us to control and isolate trust business risks from the source, and to establish our trust registration system as soon as possible. The first part studies the basic problems of the trust registration system, starts with the concept of the trust registration, introduces the subject of the trust registration, the content of the trust registration and the object of the trust registration, and defines the dual nature of the trust registration object. It is pointed out that the object of trust registration is the unity of trust property and trust legal relationship. Finally, the positive function of trust registration is discussed from three aspects: ensuring the independence of trust property, protecting beneficiary's rights and protecting transaction security. The second part makes a comparative analysis on the registration system of overseas trust. This paper introduces the characteristics of trust registration system under the background of Anglo-American law system and civil law system respectively. It focuses on discussing the similarities and differences between the antagonism of trust registration in Japan and Taiwan and the existing trust registration effective doctrine in China. It also points out the feasibility of the alternative registration effectivism. The third part focuses on the main problems and adverse effects of the trust registration system in China, starting with the departments covered by the decentralized registration of property rights, indicating that there are many registration authorities. Decentralized registration institutions for the establishment of trust on the corresponding property rights on the creation of duplicate registration, difficult to query the drawbacks; Then it analyzes the problems existing in the practice of Shanghai Trust Registration Center, and finally analyzes the negative impact of imperfect registration system on the practice of trust in our country. The fourth part is the concrete suggestion to construct our trust registration system. Trust registration supporting legislation is the first problem to be solved. This paper puts forward the advantages and feasibility of the unified legislative model of trust registration from the comparison and selection between the unified legislative model of trust registration and the decentralized legislative model. Then from the real estate property rights trust, should register the movable property right trust and the intellectual property trust three aspects proposed the trust registration institution concrete establishment; Finally, from the aspects of the application for registration of trust, the inquiry and examination of registration of trust, and the liability of the registration of trust in case of false registration, the author puts forward his own idea on the system of registration of trust.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.282
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