Trust Law Theory in Japan - Controversy as to Fundamental Construction

Abstract

(※under revision) This paper describes the history of the academic theories on Trusts in Japan, focusing on how the theories have understood the fundamental construction of Trust. Ever since the enactment of the former Trust Act, the characteristics and essential elements of the act of creating a trust have been discussed by academic society. In the background to this unsettled debate may be the peculiar nature (or heterogeneity) of trust law in terms of the Japanese legal framework. As is already well known, most of the provisions of the Civil Code, which is the basic law of the Japanese private law system, trace their roots back to civil law jurisdictions such as Germany and France. On the other hand, the legislative history of trust law directly originated in the use system under the common law tradition. Thus, the Japanese trust system is sometimes viewed as a heterogeneous mechanism just like oil floating on water, and in the history of interpretation of trust law, discussion about systematic consistency and integrity within the entire legal system, in other words, how the legal interpretation theory can mitigate the heterogeneity between the Civil Code provisions and trust system, has been considered as a very important issue. The provision of the definition of trusts, in particular, has been the key subject of this contentious debate. In this paper, I first discuss (1) Theory of right in Personam as the Generally Accepted Theory of Japanese trust law, and then (2) Shinomiya’s which develops his own Substantial Legal Entity Theory. Then, while summarizing (3) Development of Discussions after the Shinomiya’s Theory, I will finally describe some (4) Personal View.