Journal Article 信任関係の統一理論に向けて : 倫理と法が重なる領域として
Towards a Unifying Theory of Fiduciary Relationships : Between Ethics and Law

岩井, 克人

67 ( 2 )  , pp.107 - 124 , 2016-04-22 , 岩波書店
This article presents a unified theory of fiduciary relationships on the basis of the fundamental legal axiom that one may not make a contract with oneself. It characterizes fiduciary law as a law that imposes on whoever places oneself as a fiduciary to another the duty of loyalty -- the duty to act solely for the other's interests -- as a legal duty enforced by courts. It then shows how fiduciary law practically solves its apparent mix-up between ethics and law by placing the entire burden of disproof on the accused fiduciary, and justifies its disgorgement remedy by the open-ended nature of the duty of loyalty. The article also argues that the primary role of fiduciary law is not to replace but to complement ethics with law.

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