Trusts Reimagined: The Transplantation and Evolution of Trust Law in Northeast Asia

Abstract

Abstract This Article suggests that the trust envisaged by a Northeast Asian lawyer is not like the trust a common lawyer would generally conceptualize, and that a structurally different species of trust has been reconstructed and reimagined in Northeast Asia. Trust law can be transplanted, yet some of its rules are too cumbersome to be accepted directly. This ultimately calls for modifications of some of the features of the common law trust, which happened in Northeast Asia when trust law was transplanted into Romano-Germanic civil law culture, culminating in a type of civil law trust. This Article explains how the doctrinal conflicts between the civil law tradition and the common law trust have been resolved by examining the transformations that took place in the course of the transplantation process and how these conflicts created a distinctive underlying structure of the trust in Northeast Asia. Many compromises and modifications were made to pare down conflicts arising from grafting the common law-based trust onto Romano-Germanic soil. However, adopting modified trusts unexpectedly led to the dilution of some of the traditional rules in the civil codes. These alterations and the ensuing discordance with some presently well-settled civil law theories are the core themes of this Article.