【作者】 石纬林；

【导师】 杜莉；

【作者基本信息】 吉林大学 ， 法经济学， 2009， 博士

【摘要】 信托,即“受人之托,代人理财”。最早发源于古埃及的“遗嘱托孤”。伴随着私有制的产生和出现,信托制度作为一种财产转移和管理制度在英国诞生,后被美国、日本、韩国等国家移植并确立。由于信托制度在经济生活中许多方面具有独特的制度优势,信托财产又具有法定所有权与衡平所有权相分离的灵活性,因此,信托观念不断扩张,在整个市场经济领域内得到了广泛地发展和运用,成为金融市场中不可或缺的一部分。2001年《中华人民共和国信托法》颁布实施标志着我国正式确立了现代信托制度,它不仅提供了制度保证及法律支持,而且也为信托制度在我国的未来发展提供了广阔的空间。本文以马克思主义经济学、制度经济学和主流法经济学中的一些基本概念和原理为分析工具,分别对信托与信托法律制度、信托制度的要素和信托法律制度的成本与效率进行了系统的经济分析,试图探寻出隐藏在它们背后的经济逻辑,寻找出那些不符合经济学原理的信托法律制度,并结合中国的实际,对中国信托法律制度的立法现状及存在的问题进行了实证分析,提出了既符合经济逻辑、又符合国际通行做法的修改建议。更多还原

【Abstract】 "Trust" means "being entrusted by somebody to finance",originating from "the trust of an orphan under will" in Eygpt.With the emergence of private ownership of property,trust arose as a system for property shift and management in Britain,which was later transplanted and established in America,Japan,Korea and etc.As the trust system has many distinct characteristics in economic life and trust property has the flexibility of seperating legal ownership from equity ownership,the notion of trust is gradually expanding,widely used in the field of market economy and becoming an indispensable part in financial market.Its application includes family property, common property management,personal and charity foundation,pension fund, collective investment and common fund in financial field and important internationally developed construction projects,covering every field of economic activity.Trust,banking,insurance and securities are thought to be four pillars for modern finance.Although trust system has been put to use in China since the beginning of 20th century,it has not become a formal system,as there has never been legislation for trust system.With the change in the distribution pattern of national income,the deepening of enterprises’ system reform,the establishment of comprehensive social security system and other changes in external environment,trust as an independent industry has a strong demand for development.At the same time,the market is in urgent need of legislation to solve problems in trust business.As a result,the draft of Trust Law was started in 1993 and took 8 years.On Oct 1st,2001,Trust Law of the People’s Republic of China was unveiled and enforced.The enforcement of Trust Law symbolises the establishement of modern trust system in China,which not only provides system gurantee and legal support,but also a vast area for the application of trust system.However,under the circumstances that the notion of trust is not popularized in large scale in China,a rash introduction and acceptance of trust system is a big challenge.There are many differences between Trust Law in China and trust legal systems in advanced countries on both legislation and rules of basic trust theories and roles played on trust market.Furthermore,the legislation of Trust Law was carried out in the background of rectifying chaotic Trust and Investment Companies and it left some blank spaces,uncertain and imperfect points in the intial stage.Therefore,the trust legal system in China is subject to further improvement.With basic concepts and theories in Marxist economics,system economics and mainstream legal economics as analytical tools,the thesis makes a systematic economic analysis on trust and trust legal system,factors of trust system,costs and efficiency of trust legal system,aiming to explore economic logics behind these phenomena,and find out trust legal systems which do not match the economics theories.Based on Chinese realties,the author makes an empirical analysis on present legislation situation and issues of trust legal system in China proposes modifications which match both economic logic and international practices.In the introduction,we firstly analyzed the background,theoretical worth and practical significance of our thesis.Then we discussed the theoretical foundation and research method.Furthermore,we investigated the status of the trust in domestic and international research.Finally we introduced the innovations in our paper.In ChapterⅠwe mainly discussed the origin and function of the trust system.We firstly reviewed the origin and changes of the trust system,then introduced of the definition of trust in "trust law",analyzed the constituent elements and types of trust, investigated the transferability of the property and application flexibility,finally, discussed the value orientation of the trust system in other countries and in China.In ChapterⅡwe discussed the principles and functions of the trust legal system. Principles of "Trust Law" of China mainly include:the separation principle of ownership and interests,the independence principle of the trust property,the publicity principle of the trust,the legitimacy principle of the trust,the limited liability principle,and the principle of the protection of beneficiaries.The functions of the trust legal system are discussed in SectionⅡof this chapter.In ChapterⅢwe mainly carried out the economic analysis of the trust contract, the trust property and the trustees of the trust system.In the first section of this chapter,we introduced the concept and the characteristics of the trust contract,then discussed that the contract of trust can provide liquidity support and reduce the transaction costs by the contract economics analysis.In SectionⅡof this chapter,we carried out the economic analysis of the trust property.Firstly we gave the definition of the trust property,then analyzed the legal characteristics of the trust property, finally gave the value analysis of the independence of the trust property.In SectionⅢ of this chapter,we gave the economic analysis of the trust system.We firstly defined the qualifications of the trustees and analyzed the relationship between the trustee and other trust parties,secondly,discussed the rights and obligations of the trustee,finally, gave the economics analysis of rights and obligations of the Trustee.In the basic analytical framework of the principal-agent model,an incentive model of the trustee is established and the corresponding improved design is made,which provided an important basis for the reasonable contract of the payment and incentive systems of the trustee.In ChapterⅣ,we made the empirical analysis of the changes of Chinese legal system and its efficiency.In SectionⅠ,we recalled the five times clean-up and rectified movements of the trust industry from the implementation of reform and opening-up policy to the promulgation of "Trust Law" in China.We then analyzed the significance of the promulgation of "Trust Law" in China:it is benefit for building trust market norms,for protecting the interests of investors,for widely application of the property management functions,for the business innovation of trustee,for the development of our trust investment corporation.In SectionⅡ,we mainly investigated the pertinence between the trust legal system and the economic growth in China.After the calculation of the GDP growth contributed by the trust system development,we found that the promulgation of "Trust Law" promoted the trust industry,however, contributed little to the GDP growth,which shows that it has not played its due role.In ChapterⅤ,we analyzed the defects of our trust legal system and gave corresponding suggestions for improvement.We firstly analyzed the legal defects of our trust legal system and "property rights entrusted to" in the "Trust Law" of China, then proposed the corresponding suggestions.Secondly,we analyzed deficiencies of the trustee system,and put forward the idea of improving the trustee system.Finally, we proposed a few policy suggestions for the establishment of the public notice system of the trust property.更多还原