A Study on Transition of Doctrinal Views as toLegal Structure and Characteristics of Trusts
in Japan
Akira KAMO
（The University of Tokyo）
The first Japanese Trust Act and Trust Business Act wereenacted in 1922. Since then, trusts have been used mainly forcommercial purposes. Trust banks have primarily served as trustee
and have developed new areas of trust business. In the early 21stcentury the new Trust Business Act（2004）and Trust Act（2006）
were consecutively introduced to replace old legislation, intended toincrease the use of trusts in practice.
For the past 100 years, legal scholars have been engaged
in discussion as to what kind of legal structure and which legal
characteristics trusts have. Initially, the nature of beneficiaries' rights
attracted academic interests. The Trust Act 1922 was drafted on thebasis of "Obligation Theory," which derived from a leading textbook on
the Japanese Secured Bond Trust Act 1904（Torajiro Ikeda, SecuredBond Trust Act（1909））. According to Obligation Theory, a trustee isthe owner of trust property, and beneficiaries have a claim against thetrustee, not a property right over trust property.
Influenced by English case law, however, the Trust Act 1922
contained provisions that were difficult to be explained by Obligation
Theory: trust property is not included in trustee's estate on thedeath of trustee（Art. 15）; personal creditors of trustee cannot attach
trust property（Art. 16（1））. This led to criticism against Obligation
Theory. In his 1941 article, Kazuo Shinomiya, one of the leading trust― 151 ―

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law scholars in Japan, proposed to consider beneficiaries as having aproprietary right of trust property, whereas a trustee has only the titleand administrative powers of trust property（Kazuo Shinomiya, Fiduziarisches Rechtsgeschäft and Trust（1941）, reprinted in A Study on Trust
Law 3（1965））.
In the postwar era Shinomiya took a further step. Receiving
valuable insights from a study of French jurist（Pierre L epaulle,
Traité Théorique et Pratique des Trusts en Droit Interne, en Droit
Fiscal et en Droit International（1932））, Shinomiya argued that atrust property should be regarded as a "substantial" legal entity（Kazuo Shinomiya, Trust Law（1958））. Although his doctrinal view wasadmittedly useful for explaining the legal structure of trusts, it wascriticized on the ground that a trust property was not recognized as alegal entity under Japanese private law.
After a relatively stable situation of scholarly discussion in the 70s
and 80s, several new views on the legal structure and characteristicsof trusts were advanced in the 90s. On the one hand, the legal natureof beneficial interests came back into the limelight. It was pointed outthat beneficiaries have an obligatory right against trustee, but also
enjoy a legal status comparable to ownership of trust property, which
is approved by the Trust Act（Hiroto Dogauchi, Trust Doctrine
and Private Law System（1996））. On the other, the unique nature oftrustee's duties caught academic attention. It was proposed to establish
the law of fiduciary relationships which have characteristics distinct
from contractual relationships（Norio Higuchi, The Era of FiduciaryRelation（1999））.
In the 2000s scholarly interests were turned toward the legal
status of trust property which constitutes an aggregate of assets and isdistinguished from the rest of the trustee's property（Mika Yokoyama,Patrimony, 791 New Business Law 16（2004）; Hatsuru Morita, Informa― 152 ―tion and Legal Rules in Financial Transaction（2009））. Although atrustee is the owner of trust property, she is forbidden to benefit fromtrust property. A trust property belongs to trustee, but is treated as
an autonomous patrimony. Viewed in this light, trusts are considered
useful as a legal technique of asset partitioning, whereas the existenceof trust property should be disclosed to third parties through effective
notification.
As explained above, trust business in Japan has been regulatedby the Trust Business Act and commercial trusts have mostly been
administered by trust banks subject to regulatory supervision. It wasrelatively easy to detect the presence of trust property and to prevent
trustee from obtaining unlawful benefits. After enactment of the Trust
Act 2006, however, the use of family trust is now increasing, wherelay persons free of the regulatory framework may serve as trustee.
In this context, academic discussion as to the legal structure andcharacteristics of trusts takes on practical significance. It is essentialfor further development of family trusts in Japan to establish effective
ways to prohibit a trustee from benefiting from trust property and to
inform third parties of the existence of trust property.

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