立教法学88号1Word文档下载推荐.docx

1、private law, which is largely based on Civil Law system. Nor did the drafterssaw it as a contradiction that the final Act contained a number of provisionsthat provide remedies of in rem nature. Rather, those provisions, inserted atdifferent phases of drafting, reflect the drafters pragmatic response

2、 to theshifting needs of the time, such as the need to prevent the creation of trusts forabusive purposes, to restrain the trustees from abusive practices, and toencourage and regulate trust businesses.This paper aims to illustrate the pragmatism underlying the conception oftrusts in Japan by examin

3、ing the link between some of the major draftprovisions and the various aspects of drafters thinking at different draftingphases. It will begin by discussing at Part 1 the development prior to thedrafting of comprehensive trust code. Part 2 contains the main discussion ofthe drafting process, which b

4、egan in the 1910s and led up to the enactment ofthe Trust Act 1922. During this period, the initial draft was amended on anumber of times to accommodate the shifting needs of the society. Finally, Part3 examines how the final product, the Trust Act 1922, has shaped the theoryand practice of Japanese

5、 trusts in the ensuing decades.立教法学 第 88 号（2013）218 （97）1. Receiving the Idea of Trusts: Early 20th Century（1） Early uses of trusts: bond issues in LondonThe early use of trusts in Japan occurred when the Japanese governmentwas in dire need of funding to develop the infrastructure after the war with

6、Russia （1904-05）. In order to issue bonds in London, the government had toemploy the trust structure to set aside certain assets for collateral. To facilitatesuch transaction, the Secured Bond Trust Act was passed in 1905. The factthat the trust was first employed in this commercial context, as oppo

7、sed to thetraditional context of managing family assets, left unique markings on thesubsequent development of trusts in Japan. First, the government has a stronginterest in how the trust legislation takes shape. Second, the use of trustsoccurs predominantly in commercial settings. And lastly, as a r

8、everse side ofthe second feature, there is no felt need for using trusts for successionpurposes.Shortly after the 1905 Act, the government initiated a drafting processtowards more general legislation on trusts. Being specifically addressed to theneed of introducing foreign capital, the 1905 Act cont

9、ained no substantivedefinition of trusts. Article 1 of the Act defined the term trust company as acompany engaged in trust business connected with secured bonds. Article 2then provided that secured bonds must be issued in accordance with the trustcontract concluded between the company issuing the bo

10、nds and the trustcompany. However, the words trust, trust business or trust contractremained undefined in the Act.There was another, and perhaps more pressing, reason for the governmentto proceed with the drafting of general trust legislation. Shortly after 1905, anumber of businesses sprung up, pre

11、senting themselves as trust companies. Infact, not many of them were worthy of trusting, and some were in effect loansharks and debt collectors. The government keenly felt the need to regulatethem. At the same time, the Japanese economy was expanding, and theurbanised society had yet to locate a sou

12、nd source of capital for small tomid-size businesses and consumers. There, the government saw a potentialrole for the trust companies to play as a financial institution. The situation物権 信託（連続講演 ）217 （98）provided the government with sufficient impetus to draft legislation toregulate trust businesses.

13、In the early 1910s, the initiative of drafting trust legislation fell on theTreasury. It turned out that the draft was too much focused on regulatoryconcerns and lacked provisions with substantive component. Dissatisfied withthe development, the Ministry of Justice obtained the Treasurys concession

14、in1917 to draft separate trust legislation. Thus, while drafting for the legislationfor regulation of trust businesses was continued by the Treasury, ultimatelyleading to the passage of the Trust Business Act 1922, the drafting of thesubstantive legislation was carried out by the Ministry ofJustice,

15、 leading to theTrust Act 1922. The main focus of this paper falls on the latter.（2） Doctrinal receptionA key figure, who provided the intellectual backbone throughout the processof introducing trusts to Japan, was Torajiro Ikeda （1879-1939）. He graduatedfrom Tokyo Imperial University and started wor

16、king for the Ministry ofJustice from 1903, where he was involved in the drafting of the Secured BondTrust Act 1905. He then served various posts within the Ministry, as a judgefor the Tokyo District Court, and a prosecutor for the Supreme Court ofJudicature, and ultimately became the Chief Justice o

17、f the Supreme Court ofJudicature.In 1909, Ikeda published a book titled On the Law of Trusts for SecuredBonds. This proved highly influential on the subsequent drafting of the trustlegislation. Most notably, he characterised the beneficial interests as being of inpersonam nature, an assumption that

18、was never to be challenged seriously inthe following drafting process. In his definition,The trust is an institution where the trustee holds the basis-right for thebeneficiary. Therefore, although the doctrinal explication of this nature hasyet to settle in the Anglo-American scholarship, my explica

19、tion is that thelegal relationship between the trustee and the beneficiary is one ofobligation.In other words, I believe that the nature in question best fits with theexplanation that the trustee owes an obligation to hold the trust basis-rightfor the beneficiary and the beneficiary has the right to

20、 request it. 1）216 （99）The word basis-right, which appears on the first quoted passage and formsthe basis of Ikedas definition of trust, does not belong to common usage eitherin English or Japanese terminology. The term can be found in an articleLectures on Equity （1907）, which was written in Englis

21、h by Henry T. Terry,an American law professor who taught at Tokyo Imperial University in1877-84 and 1894-1912. 2） The article appeared a year before Ikedas book waspublished, and its influence on Ikedas formulation oftrusts is noticeable. In fact,Ikeda followed Terry in characterising trusts in in p

22、ersonam terms.Nonetheless, Ikeda did not blindly follow Terrys teaching. Carefully noting,as we saw in the quoted passage, that the views on characterisation of trusts isdivided among the Anglo-American scholarship, Ikeda examined both sides ofargument. On the in rem camp, he listed Spence, J. Smith

23、, Snell, Story,Ashburner, Thomson, Pomeroy, Indermour and Salmond, and on the inpersonam camp, he listed H. Smith, Adams, Perry, Erskine, Underhill, Terry,Lewin, Pollock and Ames. His conclusion was rather nuanced. In his view, thebeneficiary s right necessarily depended on the categories of trusts.

24、 Forpassive trusts, the in rem theory was more appropriate, while for active trusts,in personam theory was more persuasive. From this observation, Ikedaconcluded that the in personam theory was preferable because it was capableof providing a more comprehensive explanation than the in rem theory.Appa

25、rently, Ikeda did not adopt the duty-based conception oftrusts becausethat would relieve the theoretical tension with the Civil Code. In fact, in no partof his book, Ikeda discussed the inevitable conflict between the Common Lawtrusts and the Civil Law tradition. One possible reason for this is that

26、 he had nochoice but to adopt English trust doctrine. He was developing the theory oftrusts around the existing legislation, the Secured Bond Trust Act 1905, whichwas specifically enacted to facilitate bond issues in London. After all, he was notstrictly an academic but a pragmatic practitioner. The

27、 trust legislation was notto form part of the Civil Code, and thus he would have had no qualm with215 （100）? ） Torajiro Ikeda, On the Law ofTrusts for Secured Bonds （Shimizu Shoten, 1909）, at 119. 池田寅二郎担保附社債信託法論（清水書店 明治 40 年） 119 頁 ） Henry T. Terry, Lectures on Equity （1907） 25（4） Hogaku Kyokai Zass

28、hi 453, 460.following the logic of specialia generalibus derogant （special things derogatefrom general ones）.（3） The Exemplars of Codification: California （1872） and India （1882）In addition to Terrys teaching and academic literature in England and theUnited States, Ikeda took advantage of two exempl

29、ars of trust codification.One was the California Civil Code. Enacted in 1872, it is a comprehensiveform of private law codification. The provisions on trusts are found in twoseparate parts of the Code, Articles 847 to 871, which are contained in DivisionII on Property, and Articles 2215-2289, which are located in Division III onObligation. His admiration of the code is evident in his book: The language of