立教法学88号1.pdfVIP

立教法学 第 88 号（2013) Transformation of Trust Ideas in Japan : Drafting of the Trust Act 1922 Masayuki Tamaruya (Rikkyo University, Japan) Introduction This paper traces the drafting process of the Japanese Trust Act 1922. Although the Act itself has been superseded by the new Trust Act 2006, it has left a definitive impact on how trusts are conceptualised, debated and put into practical use in Japan. The conventional understanding is that under the Japanese trust legislation the beneficiary is entitled to claims in personam. The story is, however, more complicated than this statement suggests. Although the drafters of the Trust Act 1922 assumed throughout the drafting process that the beneficial right is to be characterised in personam, they did not necessarily view it as a precondition for the smooth transplanting of the trust idea into Japanese private law, which is largely based on Civil Law system. Nor did the drafters saw it as a contradiction that the final Act contained a number of provisions that provide remedies of in rem nature. Rather, those provisions, inserted at different phases of drafting, reflect the draftersʼ pragmatic response to the shifting needs of the time, such as the need to prevent the creation of trusts for abusive purposes, to restrain the trustees from abusive practices, and to encourage and regulate trust businesses. This paper aims to illustrate the pragmatism underlying the conception of trusts in Japan by examining the link between some of the major draft provisions and the various aspects of draftersʼ thinking at different drafting phases. It will begin by discussing at Part 1 the development prior to the drafting of comprehensive trust code. Part 2 contains the main discussion of the drafting pro