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作为信托业广泛适用的一种兑付模式,近年来,信托领域刚性兑付的问题开始不断涌现,主要原因是刚性兑付概念从本质上讲不存在信托法上的基础。为了解决这些问题、促进行业的健康发展,应取消包含刚性兑付模式的保底条款并依民法中的损害赔偿原则建立适法的赔偿机制。受托人在信托合同中因故意或重大过失造成的损失,应当分情况通过侵权责任予以规制,同时应调整信托业监管体制及司法程序,以提高信托公司信用度。
As a redemption model widely used in the trust industry, the issue of rigid redemption in the field of trust has started to emerge in recent years mainly due to the fact that the concept of rigid redemption essentially does not exist on the basis of the trust law. In order to solve these problems and promote the healthy development of the industry, the guarantee clause with a rigid mode of payment should be canceled and an appropriate compensation mechanism should be established according to the principle of damages in the civil law. The losses caused by the trustee in the trust contract caused by intentional or gross negligence shall be regulated by the tort liability according to circumstances and at the same time the trust supervision system and judicial procedures shall be adjusted so as to enhance the trustworthiness of the trust company.