《信託法》視角下的澳門《投資基金法》修訂：背景、問題與進路

Following the enactment of Law No. 15/2022 on Trust Law in 2022 and the completion of the revision of Law No. 13/2023 on the Legal Regime of the Financial System in 2023, Decree-Law No. 83/99/M, i.e., Law on Investment Funds, as well as the Securities Law are being revised and enacted, some elements need to be clarified between them. In this article, it is argued that the Investment Funds Law is a special law of the Macao Trust Law. In the context of a fund, whether it is a general investment fund, a movable asset investment fund or a real estate investment fund, a fund, being a pooled capital, is a trust property under the context of the Macao Trust Law and possesses the independence of trust property. With the establishment of the trust relationship, the property of the investment fund as trust property is　transferred to the trustee. Under the current Investment Funds Law, the relationship between the investor and the management entity is a contract of mandate, which is governed by Article 1083 ff. of the Macao  Código Civil. Both “participants” and ‘investors” under the Investment Funds Law are settlors in a fiduciary relationship. In summary, the relationship between a participant and the management entity and the depositary is that of a settlor and a trustee in a trust relationship. The relationship between the management entity and the depositary is a contractual one, and the liability of the former for the acts of the latter is a type of risk liability.