The Trust as Trojan Horse: A Comparative Perspective on Trusts' Role in Japanese Succession Law
Author | James C. Fisher |
Position | Project Associate Professor, University of Tokyo Faculty of Law & Graduate Schools for Law and Politics |
Pages | 1945-1969 |
1945
The Trust as Trojan Horse:
A Comparative Perspective on Trusts’
Role in Japanese Succession Law
James C. Fisher*
ABSTRACT: In Japan, as in other developed eco nomies, demographic and
social change is putting pressure on the esta blished rules of inter-generational
wealth transfer. This Article considers h ow the trust equips Japanese
succession law to adapt to a chang ing society. The trust was adopted into
Japanese law in the early 20th Century on the assump tion that it would
remain practically detached from th e rest of Japanese civil law. However, it is
now making good on its latent potentia l to disrupt foundational axioms of
Japanese private law. In this sense, the trust is a Trojan H orse—although
thought innocuous on its arrival, th is fragment of the common law has begun
to reconstruct Japanese private l aw from within. The significant—though
unplanned—changes caused by the trust are re-orientating Japanese
succession law, reproducing featur es characteristic of common law
jurisdictions and challenging aspects of J apan’s civil-law jurisprudence, such
as absolute rights of succession. This Article a rgues that these developments
represent a valuable and adaptive response to Japan’s changing social and
economic environment. The testamentary freedom so characteristic of the
common law offers greater efficiency than th e civil law’s preference for absolute
rights of succession. In bringing Japanese s uccession law closer to the
common-law position, the trust is not just cha nging Japanese law, but
improving it.
I. INTRODUCTION ......................................................................... 1946
II. RIGHTS OF SUCCESSION AND TESTAMENTARY FREEDOM ............ 1947
III. THE ADVANTAGE OF FREE TESTATION ....................................... 1950
A. NO NATURAL RIGHT OF FREE TESTATION .............................. 1950
B. THE SUPERIOR KNOWLEDGE OF THE TESTATRIX .................... 1952
C. NO MORAL RIGHT TO INHERIT ............................................. 1954
* Project Associate Professor, University of Tokyo Faculty of Law & Graduate Schools for
Law and Politics.
1946 IOWA LAW REVIEW [Vol. 103:1945
D. TESTAMENTARY FREEDOM & SOCIAL NEEDS ......................... 1955
E. THE RESILIENCE OF TESTAMENTARY FREEDOM IN
ENGLAND & WALES ............................................................ 1957
IV. THE ORGANIC RISE OF THE JAPANESE TRUST ............................ 1959
A. THE TRUST AS A FINANCIAL INSTRUMENT ............................. 1959
B. JUDICIAL EXPOSITION & ITS CODIFICATION ........................... 1961
V. RATIONALIZING JAPANESE TRUSTS ............................................ 1964
VI. CONCLUSION: REFLECTIONS ON COMPARATIVE
(TRUSTS) LAW .......................................................................... 1969
I. INTRODUCTION
Like other developed economies, Japan is e xperiencing major social and
demographic change. Its aging population and declining birth-rate mean an
ever-increasing demand for pensions and medical care, but also a decreasing
number of economically productive individuals who can provide the tax
revenue on which social welfare depends. 1 This is also a time of social and
cultural transition in Japan.2 The nuclear, patriarchal family unit—itself the
post-war successor to the traditional multi-generational home—is yielding to
more varied family structures. The number of childless couples is rising, and
increasing numbers of Japanese people are marrying later in life, or
cohabiting unmarried, or indeed remaining single forever.3 Divorces, re-
marriages, and single-parent households are increasingly common.4
Liberalizing views on sexuality have increased the number and visibility of
same-sex relationships, although neither same-sex marriage nor a substantive
equivalent exists in Japan.5 All these developments invite careful scrutiny of
1. See generally, Ichiro Muto et al., Ma croeconomic Impact of Population Aging in Japan:
A Perspective from an Overlapping Generations Model, 64 IMF ECON. REV. 408 (2016) (discussing the
economic effects of Japan’s aging population); Nanako Tamiya et al., Population Ageing and
Wellbeing: Lessons from Japan’s Long-Term Care Insurance Policy, 378 LANCET 1183 (2011) (discussing
the relationship between aging populations and the provision of publicly funded medical care).
2. See generally Minja Kim Cho e et al., Nontraditional Family-Related Attitudes in Japan: Macro
and Micro Determinants, 40 POPULATION & DEV. REV. 241 (2014) (discussing changing social
attitudes, particularly with respect to family issues).
3. Robert D. Retherford et al., Late Marriage and Less Marriage in Japan, 27 POPULATION
& DEV. REV. 65, 65 (2001).
4. See, e.g., AKIKO S. OISHI, NAT’L INST. OF POPULATION AND SOC. SEC. RESEARCH, CHILD
SUPPORT AND THE POVERTY OF SINGLE-MOTHER HOUSEH OLDS IN JAPAN 1 (2013), http://
www.ipss.go.jp/publication/j/DP/dp2013_e01.pdf; James M. Raymo et al., Marital Dissolution in
Japan: Recent Trends and Patterns, 11 DEMOGRAPHIC RES. 395, 397, 405 (2004).
5. Masami Tamagawa, Same-Sex Marriage in Japan, 12 J. GLBT FAM. STUD. 160, 161 (2016).
The Civil Code provisions on marriage do not expressly prohibit same-sex marriage, but various
articles (e.g., Article 159 on prescription of marital rights, Article 750 on marital names, and
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