Structure and Rulemaking in English, Japanese and Quebec Trusts

The thesis examines the principal doctrinal features of trusts in Japan and Quebec from an English legal perspective, and argues that the civil law doctrine of good faith provides a strong way of expressing trust rules originating from equity. It demonstrates that the Japanese and Quebec trusts contain profound doctrinal similarities to the English express trust, understood as a system of legal rules which restrict the authority of the trustee as titleholder. Doctrinally, the thesis examines features of each trust from the perspective of the three most important trust parties, namely settlors, trustees and beneficiaries. An examination of Japanese and Quebec trusts is valuable in part because they are built on a different set of legal ideas from the common law trust. Like for the English trust, the effective functioning of non-common law trusts depends on their interactions with background property law. Significantly, in both Japan and Quebec, the idea of “patrimony” is implicitly or explicitly embraced. Patrimony allows these trusts to differentiate themselves from contract, and to occupy a distinct space within private law. For rulemaking, I argue that the failure to understand the normative justifications of trusts law leads Japanese courts to disregard the trust’s proprietary remedies. Drawing on Quebec’s experience, I show that a view based on good faith assists the court in understanding the normative consequences of the parties’ choice of the trust as the law governing their use of property. Such a step would be vital if the Japanese trust were to be used in settings other than its current commercial environment and play a role as a democratising institution in Japanese society