论我国《信托法》的法律适用困难

我国<信托法>仍然沿袭了大陆法国家对信托制度的移植路径,即信托基于合同设定,因此受益人的财产权利不明确,受益人无法在权利受损时获得有效救济.2004年发生的金新信托"乳品信托计划"纠纷更是凸显出<信托法>的法律适用困难,"信托财产"和"财产权"的含糊表述无法明确界定信托相关人的责任以及信托财产的具体损失;法官裁量权的不足使得信托制度的衡平和灵活的特点难以得到实现.

China's Difficulties in Application of the Trust Law

A mock trial of the dispute for "Diary Plan Trust" sold by Jin Xin Trust would be an inspection on the outcome of China's acceding to the trust system. It may further reveal that the PRC Trust Law is still the fruit under the powerful tradition of civil law. The ambiguous statements based upon contract constituted trust and trustee's acquiring of the "property right" have determined that the trustee will not receive effective remedy when its rights are disturbed, and those limited applicable law and regulations are inadequate to determine the liabilities of parties relevant to the trust as well as the specific losses of the trusted property. Meanwhile, status of judge should be further enhanced so as to confronting with the challenges being faced by the existing judicial system and this need to be addressed by means of legislation refinement also at an early date.