The trust as trojan horse: A comparative perspective on trusts' role in Japanese succession law

James Fisher*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

1 Citation (Scopus)

Abstract

In Japan, as in other developed economies, demographic and social change is putting pressure on the established rules of inter-generational wealth transfer. This Article considers how the trust equips Japanese succession law to adapt to a changing society. The trust was adopted into Japanese law in the early 20th Century on the assumption that it would remain practically detached from the rest of Japanese civil law. However, it is now making good on its latent potential to disrupt foundational axioms of Japanese private law. In this sense, the trust is a Trojan Horse-although thought innocuous on its arrival, this fragment of the common law has begun to reconstruct Japanese private law from within. The significant-though unplanned-changes caused by the trust are re-orientating Japanese succession law, reproducing features characteristic of common law jurisdictions and challenging aspects of Japan's civil-law jurisprudence, such as absolute rights of succession. This Article argues 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 the civil law's preference for absolute rights of succession. In bringing Japanese succession law closer to the common-law position, the trust is not just changing Japanese law, but improving it.

Original languageEnglish
Pages (from-to)1945-1969
Number of pages25
JournalIowa Law Review
Volume103
Issue number5
Publication statusPublished - Jul 2018

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