1. Professor Lionel Smith holds the Sir William C Macdonald Chair at the Faculty of Law of McGill University in Montreal, Canada.

2. An elaborated version of this article was published as Taoka, Eriko, ‘Jutakusha no chūjitsugimu no honshitsu-teki naiyō to shintakujimusuikōgimu, zenkanchūigimu tono gainenteki kankei ni tsuite no ichishiron [The Duty of Loyalty and Its Conceptual Relationship with the Duty to Perform Entrusted Business and the Duty of Care]’ in Dōgauchi, Hiroto (ed), Shintaku no Rinen to Katsuyō [Doctrines and Practical Usage of Trusts] (Torasuto Mirai Fōramu 2015) 103Google Scholar.

3. Shōhō [Commercial Code], Act 48 of 1899.

4. Art 254(3) of the Commercial Code (repealed in 2005) provided that a relationship between a company and director was subjected to provisions of the Civil Code that governed a mandate contract. The same provision is currently found in Kaishahō [Companies Act], Act 86 of 2005, art 330. As art 644 of the Civil Code (Minpō, Act 89 of 1897) provides, ‘A mandatary shall assume a duty to administer the mandated business with the care of a good manager and in compliance with the main purport of the mandate’, a director owes the duty of care in accordance with this Article. The duty of care is defined as a duty to take reasonable care (or to act in the way a reasonable person would do) when executing entrusted affairs.

5. Okazaki, Joichi, Kaisei Kaishahō [Amended Corporate Law] (Nihonkeizaishinbunsha 1950) 99Google Scholar; Hoshikawa, Chōshichi, ‘Torishimariyaku no chūjitsugimu to sekinin ni tsuite no ichikōsatsu [Director's Duty of Loyalty and Their Liability to a Corporation]’ (1963) 38(3–4) Waseda Hōgaku 1, 1Google Scholar. For more details about the 1950 amendments, see Saegusa, Kazuo, ‘Shōwa 25-nen shōhō kaisei no rekishiteki igi [The Historical Significance of the Amendments to the Commercial Code in 1950]’ (1973) 46(1) Hōritsu Ronsō 69Google Scholar; Ikeno, Chiaki, ‘Sengo kaishahō e no dai-ippo [The First Step toward Post-War Corporate Law]’ in Hamada, Michiyo (ed), Nihonkaisha rippō no rekishiteki tenkai [Historical Development of Japanese Corporate Law] (Shōjihōmukenkyūkai 1999) 206Google Scholar; Nakahigashi, Masafumi, Shōhōkaisei (Shōwa 25-nen･26-nen) GHQ/SCAP Bunsho [GHQ/SCAP Records on the 1950 and 1951 Amendments to the Commercial Code] (Shinzansha 2003)Google Scholar. With the introduction of the board of directors, the corporate organ from whom permission must be sought for a self-dealing transaction was changed from the statutory auditor to the board of directors.

6. Ōsumi, Kenichirō and Ōmori, Tadao, Chikujō kaiseikaishahō kaisetsu [Article-by-article Commentaries on the Amended Companies Act] (Yūhikaku 1951) 235Google Scholar; Morimoto, Shigeru, ‘Torishimariyaku no zenkanchūigimu to chūjitsugimu [Director's Duties of Care and Loyalty]’ (1980) 81(4) Minshōhō Zasshi 483Google Scholar; Akahori, Mitsuko, ‘Torishimariyaku no Chūjitsugimu (4) [Director's Duty of Loyalty (4)]’ (1968) 85(4) Hōritsu Kyōkai Zasshi 532Google Scholar; Suzuki, Takeo, Shinpan Kaishahō [New Edition on Corporate Law] (5th edn, Kōbundō 1994) 193Google Scholar.

7. Yoshinaga, Eisuke, ‘Torishimariyaku no ippanteki-gimu [The General Obligations of a Director]’ (1953) 29(4) Hitotsubashi Ronsō 227Google Scholar; Yamaguchi, Kōgoro, ‘Torishimariayku no kyōgyōhishigimu [The Director's Duty to Not Compete]’ (1954) 4 Kōnan Ronshū 4, 45Google Scholar; Osakaya, Kimio, ‘Torishimariyaku no chūjitsugimu [Director's Duty of Loyalty]’ in Tanaka, Kōtarō (ed), Kabushikigaishahō kōza 3 [Lectures on Corporate Law 3] (Yuhikaku 1956) 116Google Scholar; Sakamaki, Toshio, ‘Torishimariyaku no kaisha ni taisuru sekinin – Shōhō 266-jō no kenkyū [Responsibilities of Directors to the Corporation – A Study of Article 266 of the Commercial Code]’ (1965) 41(1) Waseda Hōgaku 23Google Scholar; Hoshikawa, Chōshichi, ‘Torishimariyaku no chūjitsugimu no hōteki kiso narabi ni hatsugen keitai [Legal Basis and Patterns of Corporate Director's Fiduciary Duty]’ (1966) 41(2) Waseda Hōgaku 113Google Scholar.

8. Supreme Court Grand Bench Judgment 24 June 1970, 24(6) Minshū 625. In this case, a shareholder contested the validity of a political donation made by the company. The central issue was whether the donation fell within the scope of the articles of association of the company, and accordingly, whether the company had the legal capacity to make the donation. The Supreme Court stated that art 254–2 was a mere articulation of the application of the duty of care. However, it is debatable as to whether this decision should be considered a precedent defining the relationship between the duties of loyalty and care, because the Court's statement was only for the purpose of dismissing the plaintiff's argument that the Article imposed a ‘higher’ obligation than the duty of care. A director's conflict of interest was not relevant to the case, nor was the possible meaning of the duty of loyalty an issue.

9. As for directors’ liability in cases where the regulated transactions have caused loss to the companies, see Companies Act, arts 423 (2) and (3), and 428.

10. Fujita, Tomotaka, ‘Chūjitsugimu no kinō [Functions of the Duty of Loyalty]’ (2000) 137(2) Hōgaku Kyōkai Zasshi 283, 305Google Scholar; Tanaka, Wataru, ‘Chūjitsugimu ni kansuru ichikōsatsu [Some Thoughts on the Duty of Loyalty]’ in Kozuka, Sōichirō and Tanaka, Mika (eds), Shōjihō e no Teigen [Suggestions for Commercial Law] (Shōjihōmu 2004) 225, 229Google Scholar; ‘Kinyūtorihiki ni okeru Fiduciary’ ni kansuru hōritsumondai kenkyūkai, ‘Kinyūtorihiki no tenkai to shinnin no shosō [Development of Financial Transactions and Various Aspects of the Fiduciary Concept]’ (2010) 29(4) Kinyū Kenkyū 179, 200Google Scholar.

11. Ikuma, Yoshiyuki, ‘Torishimariyaku no shinningimu to “sōtei kabunushi” [The Director's Fiduciary Duty and the Envisioned Shareholder]’ (2010) 60 Meijō Hōgaku 149, 154Google Scholar; Egashira, Kenjirō, Kabushikigaishahō [Corporate Law] (7th edn, Yūhikaku 2017) 434–435Google Scholar.

12. Morimoto, Shigeru, ‘Kaishahō no moto ni okeru torishimariyaku no sekinin [Directors’ Liabilities under the Companies Act]’ (2008) 1841 Kin'yū Hōmu Jijō 12Google Scholar.

13. See eg Supreme Court 2nd Petty Bench Judgment 28 January 2008, 1997 Hanrei Jihō 143. The issue was whether directors should be held liable for their careless decision to finance a third party in the situation where at the time of the decision it would have been easy to discover that the third party would become unable to pay back the loan. The Court held that the directors’ decision to provide finance constituted breaches of the duties of loyalty and care, despite the fact that the financing had nothing to do with the directors’ conflict of interest.

14. See Companies Act, art 423.

15. Art 20: A trustee shall administer trust affairs with the due care of a prudent manager.Art 9: A trustee shall not receive benefits from the trust in anyone's name, provided however, this shall not apply if he is one of the beneficiaries.

Art 22(1): A trustee shall not acquire any property of the trust for himself in anyone's name, or acquire any right against the trust, provided however, this shall not apply to a case where he acquires permission from the court to acquire property of the trust for an unavoidable reason.

16. For the history of the Trust Act 1922, see Yamada, Akira, Shintakurippōkatei no Kenkyū [Studies on the Enacting Process of the Trust Act] (Keisōshobō 1981)Google Scholar; Tamaruya, Masayuki, ‘Transformation of Trust Ideas in Japan: Drafting of the Trust Act 1922’ (2013) 88 Rikkyō Hōgaku 218Google Scholar.

17. Shinomiya, Kazuo, Shintaku no Kenkyū [Studies on the Trust] (Yūhikaku 1965) 213Google Scholar; Shinomiya, Kazuo, Shintakuhō Shinpan [Trust Law New Edition] (Yūhikaku 1989) 231Google Scholar.

18. Arai, Makoto, Shintakuhō [Trust Law] (3rd edn, Yūhikaku 2008) 249Google Scholar.

19. (1726) Sel Cas Ch 61, 25 ER 223; also available at [1726] EWHC J31 (Ch).

20. ‘The Fourth Trust Law Sectional Meeting of the Legislative Council of the Ministry of Justice (9 November 2004)’ <www.moj.go.jp/shingi1/shingi_041109-1.html> accessed 13 June 2019. As for the details of the discussions in the Legislative Council, see Yoshinaga, Kazuyuki, ‘Chūjitsugimu-ron ni nokosareta kadai ni kansuru ichikōsatsu – Hōseishingikai shintakuhōbukai ni okeru giron no seiri to bunseki wo tsūjite [A Study on Unresolved Issues in Duty of Loyalty]’ in Yonekura, Akira (ed), Shintakuhō no Shintenkai [New Developments in Trust Law] (Shōjihōmu 2008) 158Google Scholar.

21. In accordance with the request of the then Minister of Justice, the Legislative Council tasked to amend the 1922 Trust Act was formed in the Civil Affairs Bureau of the Ministry of Justice in 2004. The Legislative Council produced the draft of the amendments of the Act in 2006. The draft is the basis of 2006 Trust Act.

22. In practice, a related case is a situation where the banking division of a trust bank uses the information and know-how acquired by the trust division of the trust bank.

23. Riekisōhankenkyukai, (ed), Kinyūtorihiki ni okeru Riekisōhan (Kakuronhen) [Conflicts of Interest in Financial Transactions (Specific Topics)] (129 Bessatsu NBL, Shōjihōmu 2009) 71–72Google Scholar; Okino, Masami, ‘Kyūsai – jutakusha no “rieki no hakidashi” sekinin ni tsuite [Remedies – On the Liability of the Trustee to “Disgorge Gains”]’ (2004) 791 NBL (New Business Law) 44, 54Google Scholar.

24. Teramoto, Masahiro, Chikujō kaisetsu atarashii shintakuhō (Zōhoban) [Article-by-article Commentaries on the New Trust Act (Enlarged Edition)] (Shōjihōmu 2008) 129Google Scholar.

25. See Conaglen, Matthew, Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary Duties (Hart Publishing 2010) 120Google Scholar (discussing the relationship between the conflict and profit principles in Commonwealth jurisdictions and concluding that the profit principle, when applied in a situation where the conflict principle is also applicable, is simply a ‘subset of the conflict principle’).

26. eg Teramoto, Chikujō kaisetsu (n 24) 118.

27. Arai (n 18) 244. The same is true of the agent's duties: Taniguchi, Tomohei, Ikuyo, Toru, and Hironaka, Toshio (eds), Shinpan chūshaku minpō (16) [Commentaries on Civil Law New Edition (16)] (Yūhikaku 1989) 222Google Scholar.

28. One notable difference from common law jurisdictions is that Japanese trust law does not recognize profit-stripping remedies. Although the introduction of profit-stripping remedies for a breach of the duty of loyalty was discussed during the amendment process of the 2006 Trust Act, it was dismissed because such remedies were thought to be incompatible with the principle of loss-based compensation adopted under Japanese civil law.

29. See Civil Code, art 644.

30. Civil Code, art 108: An agent may not be the agent of the other party or the agent of both parties in the same juristic act; provided, however, that this shall not apply where the act constitutes the performance of an obligation, or the act is authorized by the principal in advance.

31. Civil Code, art 826: If an act involves a conflict of interests between a person who exercises parental authority and a child, the person… shall apply to the family court to have a special representative for the child appointed. (2) In the case where a person exercises parental authority for more than one child and an act creates a conflict of interests between the children, the person… shall apply to have a special representative for that child appointed.

32. Notable works include Yasunaga, Masaaki, ‘Dairi inin ni okeru dairinin juninsha no kōdōjunsoku [Rules of Conduct for Agents and Mandataries]’ in Zaisankanri ni okeru jutakusha oyobi sore ni ruisuisuru mono no kōdōkijun [Rules of Conduct on Trustees and Similar Parties] (TRUST 60 1995) 5Google Scholar; Dōgauchi, Hiroto, Shintakuhōri to shihōtaikei [Trust Law Doctrines and the Private Law System] (Yūhikaku 1996) 147Google Scholar; Iwadō, Michiko, ‘Doitsuhō ni okeru jimushorisha no seijitsugimu [The Mandatary's Treupflicht in German Law]’ (1998) 48(3) Kobe Hōgaku 609Google Scholar; Iwadō, Michiko, ‘Ininkeiyaku ni okeru juninsha no chūigimu [The Mandatary's Duty of Care under the Mandate Contract]’ (2002) 64 Shihō 152Google Scholar.

33. The lack of academic attention to an agent's duty of loyalty is perhaps also attributable to the fact that Japanese laws concerning agency and mandate contract have been heavily influenced by German and French laws. The two countries’ laws have been much studied for the purpose of improving Japanese laws on agency and mandate contract. However, laws of common law jurisdictions have hardly ever been examined for the same purpose.

34. eg Yasunaga (n 32); Dōgauchi, Shintakuhōri to shihōtaikei (n 32).

35. Frankel, Tamar, ‘Fiduciary Law’ (1983) 71 California Law Review 795CrossRefGoogle Scholar; Higuchi, Norio, ‘Shintakutekikankei to jutakusha no sekinin [The Fiduciary Relationship and the Trustee's Responsibilities]’ (1992) 170 Shintaku 99Google Scholar; Higuchi, Norio, Fiduciary (shinnin) no jidai shintaku to keiyaku [The Age of the Fiduciary, Trust and Contract] (Yūhikaku 1999)Google Scholar.

36. Kawai, Takeshi (ed), Senmonka no sekinin [Professional Liability] (Nihonhyōronsha 1993)Google Scholar; ‘Zadankai “Senmonkasekininhōri” no kadai (Round-table Discussion on Issues in “Professional Liability” Doctrine)’ (1995) 67(2) Hōritsu Jihō 30Google Scholar.

37. As for financial service providers' duties to provide information and advice, see Shutō, Megumi, ‘Kojintōshika wo meguru mondai [Issues Relating to Individual Investors]’ (2000) 38(1) Shōken Anarisuto Journal 54Google Scholar; Imagawa, Yoshifumi, ‘Shinningimu to jikosekiningensoku [Fiduciary Duty and the Principle of Personal Responsibility]’ (2003) 33(3) Kobe Gakuin Hōgaku 47Google Scholar; Onosato, Mitsuhiro, ‘Kinyusābisu ni okeru kōiruikei to shinningimu Framework [Behavioral Patterns in Financial Services and the Fiduciary Obligation Framework]’ (2006) 2 Kyōto Gakuen Hōgaku 177Google Scholar. In relation to a bank's obligation to provide information to its customers, see Honda, Junichi, Keiyakukihan no seiritsu to han'i [Establishment of Contractual Regulation and its Scope] (Hitotsubusha 1999) 137–140Google Scholar. As for doctors’ obligations, see Higuchi, Fiduciary (shinnin) no Jidai (n 35).

38. Dōgauchi, Hiroto, ‘“Fiduciary” ga yattekita [The “Fiduciary” Has Come]’ (2000) 38(1) Shōken Anarisuto Journal 46, 46–47Google Scholar.

39. As for problems associated with the introduction of the fiduciary duty and relationship into Japanese law, see Taoka, Eriko, ‘Shinninkankeigainen to sono kakudaigenshō no bunseki (1) (2) [The Concept of Fiduciary Relationship and Its Ongoing Expansion (1) (2) – Do We Really Need the Concept of Fiduciary Relationship?]’ (2008) 59(1) Waseda Hōgakukaishi 259Google Scholar, (2009) 59(2) Waseda Hōgakukaishi 313.

40. The Legislative Council Subcommittee to amend the Civil Code was established in 2009. The bill to amend the Civil Code was passed by the Diet in May 2017. The 2017 amendments are the first extensive reforms of the Code since its enactment in 1896.

41. ‘The Seventeenth Meeting of the Civil Code (Law of Obligations) Subcommittee of the Legislative Council of the Ministry of Justice’ (16 October 2010) <www.moj.go.jp/content/000058430.pdf> accessed 13 June 2019.

42. Since the author previously argued against the introduction of the fiduciary duty into Japanese law, the author rejected the expansion of the positive aspect of the duty of loyalty to include various duties mentioned in relation to the Japanese ‘fiduciary craze’: see Taoka, ‘Shinninkankeigainen to sono kakudaigenshō no bunseki (1) (2)’ (n 40). Accordingly, the issue of the positive aspect of the duty of loyalty that the author has yet to address is whether the positive aspect as argued by Shinomiya should be recognized as part of the duty of loyalty.

43. eg Hayward v Bank of Nova Scotia (1984) 45 OR (2d) 542 (Ontario High Court of Justice); Woods v Martins Bank Ltd [1959] 1 QB 55; Commonwealth Bank of Australia v Smith [1991] FCA 481, 102 ALR 453; Plaza Fiberglass Manufacturing Ltd v Cardinal Insurance Co (1990) 68 DLR (4th) 586 (Ontario High Court of Justice); Hodgkinson v Simms [1994] 3 SCR 377. As for the obligations that the fiduciary duty once encompassed and the related discussions, see n 50.

44. Smith, Lionel, ‘The Motive, Not the Deed’ in Getzler, Joshua (ed), Rationalizing Property, Equity and Trusts (LexisNexis 2003) 53Google Scholar.

45. Conaglen, Fiduciary Loyalty (n 25).

46. Smith (n 44) 73, 77. As for terminology, the fiduciary duty and duty of loyalty mean the same duty. Smith sometimes refers to the duty of loyalty instead of fiduciary duty for the reason that the former is contextually neutral as it is used also in civil law jurisdictions: Smith (n 44) 54.

47. ibid 73.

48. Although Smith uses the terms no-conflict rule and no-profit rule, the conflict and profit principles are used throughout this article because the counterparts in Japanese law are translated as such.

49. ibid 56.

50. Conaglen, Fiduciary Loyalty (n 25) 39–40, 61. The following obligations are examined: the duty to perform the task undertaken; duties of care and skill; the conflict and profit principles; duty of good faith; duties referred to in the application of the proper purposes doctrine; duty to consider the exercise of fiduciary powers; and duty to act in good faith in the principal's best interests: ibid 32–58.

51. ibid 66–67.

52. ibid 67.

53. ibid 72, 127.

54. ibid 63.

55. ibid 65, 269. As for the conflict principle, Conaglen divides it into the duty-interest doctrine and duty-duty doctrine, stating that the two doctrines play different functions. The duty-interest doctrine covers a situation involving the risk that a trustee might breach his non-fiduciary duty due to their self-interest, such as a case of self-dealing, and prohibits a fiduciary from placing himself or herself in such a situation: ibid 114. In contrast, the duty-duty doctrine prohibits the fiduciary from placing himself or herself in a situation where the fiduciary might breach the non-fiduciary duty owed to the beneficiary for the sake of performing the non-fiduciary duty that is owed to another beneficiary. An agent's dual-employment is a typical example. While the source of the risk of breaching the non-fiduciary duty is different (ie a fiduciary's self-interest or non-fiduciary duty owed to another beneficiary), the two doctrines ultimately serve the same purpose – protecting the non-fiduciary duty from being breached: ibid 146–150. See also Conaglen, Matthew, ‘Fiduciary Regulation of Conflicts between Duties’ (2009) 125 Law Quarterly Review 111Google Scholar.

56. Smith (n 44) 61.

57. ibid 60–61.

58. ibid 63, 73.

59. ibid 60.

60. ibid 64.

61. ibid.

62. ibid.

63. ibid 73–74.

64. ibid 74.

65. ibid 75.

66. Smith refers to arts 6, 7, and 1375 of the Civil Code of Quebec: ibid 66.

67. Shinomiya, Shintaku no Kenkyū (n 17) 209, 220; Totsuka, Noboru, ‘Torishimariyaku no chūjitsugimu – Zenkangimu to wa seishitsu wo koto ni suru – [The Director's Duty of Loyalty – Different from the Duty of Care]’ (1967) 387 Juristo 66, 66Google Scholar.

68. Yamada, Akira, Nihon rippōshiryō zenshu 2 Shintakuhō shintakugyōhō [Japanese Law Draft Records 2 Trust Act and Trust Business Act] (Shinzansha 1991) 255Google Scholar; Henshūbu, Bessatsu NBL (ed), Shintakuhōkaisei yōkōshian to kaisetsu [Draft Amendments to the Trust Act: Text and Commentary] (104 Bessatsu NBL, Shōjihōmu 2005) 104Google Scholar.

69. Teramoto, Chikujō kaisetsu (n 24) 118; Teramoto, Shintō, Kaisetsu Shin-shintakuhō [Commentaries on the New Trust Law] (Kōbundō 2007) 68Google Scholar; Hoshino, Yutaka, Shintakuhōriron no keisei to ōyō [Formation and Application of Trust Law Doctrines] (Shinzansha 2004) 242–243Google Scholar.

70. Dōgauchi, Hiroto, Shintakuhō nyūmon [Introduction to Trust Law] (Nihonkeizaishinbunsha 2007) 152Google Scholar.

71. For example, a seller owes a duty to take due care when storing sales goods when the goods are specified ones: Civil Code, art 400.

72. See Conaglen, Fiduciary Loyalty (n 25) 65–66.

73. Dōgauchi, Shintakuhō nyūmon (n 70) 156, 162.

74. Conaglen analyzes the ‘inhibition principle’ that underlies the same rule in Commonwealth jurisdictions as the ones in Japanese trust and agency laws outlined in the main text, and admits that the inhibition principle does not fit squarely with his idea of prophylactic fiduciary obligation: Conaglen, Fiduciary Loyalty (n 25) 150–155.

75. Supreme Court First Petty Bench Judgment 20 April 1967, 21(3) Minshū 697 (in the case described in the main text, the validity of the sales contract concluded by the agent became an issue. The Court stated that the contract was in principle valid; however, it would have become invalid if the other party knew or had a reason to know the agent's motivation to benefit himself).

76. kaiseikentōiinkai, Minpō (saikenhō) (ed), Shōkai saikenhōkaisei no kihonhōshin I [Commentaries on Policies Concerning the Amendments to the Law of Obligations I] (Shōjihōmu 2009) 238–239Google Scholar.

77. ibid.

78. Smith (n 44) 68–73. In trust law contexts, Smith refers to cases such as Barr's Settlement Trusts, Re Abacus Trust Co (Isle of Man) Ltd v Barr [2003] EWHC 114 (Ch), [2003] Ch 409; Klug v Klug [1918] 2 Ch 67. As for the proper purposes doctrine, see Teck Corporation v Millar (1972) 33 DLR (3d) 288 (British Columbia Supreme Court).

79. Smith (n 44) 60.

80. While there are numerous examples, one is a case of breaking off negotiations for a contract. A person is held liable for loss incurred by another party if the former refused to conclude a contract with the latter without justification while letting the latter hold the expectation that the contract would be concluded. See Honda, Junichi, Keiyakuteiketsujō no kashitsuriron ni tsuite [On the Doctrine of Culpa in Contrahendo] (Hitotsubusha 1999) 211Google Scholar; Hirano, Hiroyuki, ‘Iwayuru “Keiyakujō no kashitsu” sekinin ni tsuite [On the So-called Liability in “Culpa in Contrahendo”]’ (1989) 61(6) Hōritsu Ronsō 61Google Scholar). Another instance is the case of a lease contract where a lessor's exercise of his termination right is barred as an abuse of the right. See Supreme Court Third Petty Bench 29 March 1966, 446 Hanrei Jihō 43 (a lessor attempted to terminate the lease contract for the reason that the amount of rent paid by a lessee was only slightly less than the promised amount).

81. Hirai, Yoshio, Songaibaishōhō no riron [Doctrines on Laws on Damages] (Tōkyōdaigakushuppankai 1971) 457–459Google Scholar; Goto, Takanori, Gendai songaibaishō-ron [Modern Doctrines on Damages] (Nihonhyōronsha 1982) 187–195Google Scholar.

82. Dōgauchi, Hiroto, ‘Zenkanchūigimu wo megutte [On the Duty of Care]’ (2006) 305 Hōgaku Kyōshitsu 37, 44Google Scholar.

83. Smith also states that a fiduciary's ‘undertaking issues directly in the fiduciary duty to act in what he perceives to be the best interests of the beneficiary’: Smith (n 44) 76.

84. Although Smith also acknowledges the possibility of having a regulatory framework where the burden of proof is shifted to the trustee, he dismisses that possibility because ‘this is clearly not the law’ of Commonwealth jurisdictions: ibid 75.

85. Bessatsu NBL Henshūbu (n 68) 107; Teramoto, Chikujō kaisetsu (n 24) 129; Riekisōhankenkyukai (n 24) 71.

86. Fujioka, Yasuhiro, ‘Hō no kokusaika to hikakuhō no kadai [Internationalization of Law and the Tasks of Comparative Law]’ in Waseda University Institute of Comparative Law (ed), Hikakuō to Hōritsugaku [Comparative Law and Legal Scholarship] (Seibundō 2010) 299Google Scholar.

87. For a recent discussion of a trustee's duty of loyalty drawing on earlier work by the author, see Dōgauchi, Hiroto, Shintakuhō [Trust Law] (Yūhikaku 2017) 225Google Scholar (discussing a trustee's duty of loyalty and citing Taoka, ‘Jutakusha no chūjitsugimu’ (n 2)). In this book, which is one of the most recent major scholarly works on trust law written by a leading scholar of civil law and trust law, Dōgauchi (of the University of Tokyo) adopts the approach as proposed in this article by the author to the trustee's duty of loyalty.