East Asian Trusts at the Crossroads

Abstract

The purpose of this work is to scrutinize the legal structure of trusts in Taiwan, Japan and South Korea. The so-called infrastructure of the private law of them is rooted in the Roman-Germanic basis, which adopts dichotomous system in respect of the private law dealing with property: the law of property and that of obligation. However, the adoption of the trust has caused some problems. Though controversial, the contract-based view seems to be the majority thesis in the East Asian civil jurisdictions, yet the property-based view dominates the common law world nowadays. However, being influenced by common law, the property-approach is also asserted in the aforementioned jurisdictions. It should be noted there has been another approach normally adopted by some civil jurisdictions and mixed jurisdictions, i.e. the doctrine of separate patrimony. The East Asian civi jurisdictions’ approach is somehow at a crossroads. Being a legal system where nomenclature matters, the issue of taxonomic classification can hardly be ignored. We must find a way out from the crossroads, either perfect or not. It is to this task to which the present work is devoted.