Trusts in the World without Equity〜Comparative Studies on How Civil Law
Jurisdictions Have Introduced Trusts 〜
Atsuko Sese（Kyoto Prefectural University）

As well known, Dr. Shinomiya’s argument,“the trust system
is quite characteristic of common law system, and therefore, whencivil law jurisdictions introduce trust system, it is bound to beheterogeneous as if‘oil floating on water’”has almost become adogma（hereinafter referred to as“Shinomiya’s Dogma”）that hascontinuously spellbound many scholars and Shinomiya’s Dogma has
been repeatedly mentioned in their theses on law of trust.
On the other hand, Professor Dogauchi challenges Shinomiya’s
Dogma by arguing that“As long as we consider law of trust as a sortof private law, we must not think that law of trust is something
different from other legal system including contracts and legal persons
based on civil law system.”Without doubt, Shinomiya’s Dogma has taken on a life of its
own. We must rethink about whether a trust can really be explained
only by common law system and if so, which features of trust arecontradicted with private law system in civil law jurisdictions.
Of course, the awareness of this issue is shared by many civil law
jurisdictions in the process of their struggles in order to introduce
trust.
Law of trust was produced in common law system which
distinguishes legal（common law）right from equitable right, and“though the English do not lay exclusive claim to having discovered― 143 ―

信託法研究第38号（2013）

God, they do claim to have invented the trust with two natures in one”.
Preamble of Hague Trust Convention stipulates:“the trust, as developed in courts of equity in common lawjurisdictions and adopted with some modifications in other jurisdictions,is a unique institution”
In addition, the Priviy Council has said that“the distinction
between the legal and the equitable estate is of the essence of thetrust.”
In short, the argument that a trust can only be explained in thecontext of common law system which distinguishes legal（commonlaw）right enjoyed by a trustee from equitable right owned by abeneficiary has long spellbound civil law jurisdictions as if a sort ofreligion.
I have become aware of this issue in comparative studies onChinese trust law.
One of the most important features of Chinese trust law is that it
does not require any transfer of ownership of trust property.
However, both common law and civil law jurisdictions share theunderstanding that the transfer of property is an essential factor
to create a trust. Not only England and the U.S. trust law but also
Principles of European Trust Law take it for granted to transfer atrust property to a trustee. Chinese trust law is quite unique in thiscontext.
Like Chinese trust law, trust law of Quebec does not require anytransfer of ownership of trust property, either. This is considered
as one of the mixture phenomena of French law and common law
produced by the history of transfer from French territory to English
territory in 1763. In other words, the fact that although a property istransferred to a trustee, it does not constitute the trustee’s patrimony
cannot be well explained by civil law system that does not distinguish― 144 ―

legal from equitable right like common law system. Therefore, Quebec
trust law has established the principle that a property constitutes anindependent patrimony that does not belong to anyone including thetrustee, the settlor and the beneficiary.
Professor Nohmi calls such kind of trust including China andQuebec“Quebec –type Trust”and compares it with common law trustand Japanese trust, all of which require a property to be transferred tothe trustee.
“Quebec –type Trust”reminds us of the fact that civil law
jurisdictions have difficulties when they introduce trust system andeach of those jurisdictions make some arrangement to solve theproblems in different ways.
Therefore, in this thesis, I try to analyse how such civil law
jurisdictions as China, Quebec, Japan, France, Germany and Scotland
have made arrangement to adjust trust system with their civil law
system.
First, I will solve the problem whether a trust really can be
explained by common law system and be contradicted with civil law
system without any special arrangement.
Second, which features of a trust is contradicted with civil law
system must be clarified.
Third, whether common law system can consistently explain suchfeatures must be analysed.
Forth, how civil law jurisdictions have made arrangement to adapt
trust to their own civil law systems must be explained.

― 145 ―