Abstract
Abstract This article examines the idea of the “irreducible core” of trustee duties in relation to East Asian trusts. Although the Japanese Trust Act of 2006 has designated many duties as non-core, the extent of reduction is far from certain. This is because regulatory law continues to apply, as well as the court’s policy interest in giving effect to the trust only where this is intended by the parties. The New Zealand Trust Act of 2019, which highlights the centrality of good faith rather than self-denial, clearly identifies the duties which stand at the core of the Japanese and Chinese trusts.
Highlights
This article examines the idea of the “irreducible core” of trustee duties in relation to East Asian trusts
Japan is one of the civil law jurisdictions where the trust is the primary legal form used in commercial situations including securitisation and pensions, which contrasts with the situation in continental Europe, where sui generis solutions are usually preferred.[4]
Japanese court attaches primary importance to parties’ agreement where they had the opportunity to designate the appropriate level of duty Self-denial beyond good faith is not a core duty in the Japanese trust
Summary
In the common law trust, trustee duties stand at the centre of the trust. As Tony Honorestresses, it is the nature of trusteeship as an office which determines whether an arrangement meets the minimum requirement to be characterised as a trust.[12]. Japan is not an exception to the problem; as Matsumoto Nobuko notes the term is used in a loose way by the Financial Services Agency in the official policy context She sees the case of Supreme Court, Heisei 28-9-6, Kinhan 1503-2 (2016) as supporting the view that legally fiduciary duty can be interpreted as the duty of care where the it is necessary to entrust property or discretion in order to obtain a particular service. Core duties include the need to know trust terms, to act in accordance with these terms, good faith, and to act for the benefit of the beneficiaries or for the purpose of the trust The lack of good faith would make the trust illusory
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