Mixed Legal System from the Perspective of Japanese Trust Law

Abstract

The law of trust is like a drop of oil that floats on the surface of water. This remark by Professor Shinomiya, the author of a definitive treatise on Japanese trust law, is a reminder that the law of trust has yet to locate its proper place within the structure of Japanese private law. In Japan, the Civil Code forms the basis of private law, and a separate statute provides for the law of trusts. The Civil Code was drafted in the 1890s under the heavy influence of French and German jurisprudence. The Trust Law, originally enacted in 1922 and now superseded by new legislation in 2006, follows the Common Law tradition. The law of trusts in Japan is thus an obvious example of the mixing of the Civil Law tradition and the Common Law tradition. Nevertheless, Japanese scholars have made only a limited attempt to learn from the mixed legal system, while huge research efforts have been devoted on trust law and jurisprudence in England, the USA, and other Common Law jurisdictions.

What can Japanese lawyers learn from the experience in the mixed legal system, and particularly in South Africa? More generally, what does the perspective of the mixed legal system have to offer for comparative studies? This paper is an attempt to address these questions in the context of trust law.

Keywords: mixed legal system, trust law, Japanese law